SELLING OR RENTING YOUR PROPERTY DURING THE CURRENT CAPE TOWN DROUGHT?

WHAT TO KNOW. HOW TO PREPARE.

Capetonians and Cape Town property owners alike are currently experiencing the distressing toll of the recent drought in and around the Cape. In my capacity as Attorney and more specifically, practicing Conveyancer, I am often faced with circumstances in which property disputes ensue between Seller and Purchaser (or Landlord and Tennant) in and during the transfer (or letting) process. Most recently, the dominant theme for disputes of such a nature relates to Purchasers’ grievances after having purchased immovable property with a sparkling blue swimming pool, luscious growing garden or other water/fauna features and fixtures, which has since morphed into not much more than concrete swamps and dirt patches at the property.

Ordinarily and in the event of a defect discovered at a property subsequent to sale (often in circumstances where Purchasers are contractually permitted to take early occupation), the subject of the argument begs the question of whether the property was sold voetstoots as it stands or, whether the Seller is liable to rectify the particular defect. Generally, the Seller is obliged to continue to maintain the property and keep in the same condition as it was at the date of conclusion of the sale until such time as the risk of ownership has passed to the Purchaser, for example, in the instance of early occupation and possession, or transfer of ownership.  Any new defects which have arisen subsequent to the date of sale and prior to the passing of risk to the Purchaser, must generally be restored to the same condition as it was at date of sale, which costs are by and large borne by the Seller.

The term “vis major” quite literally refers to a “superior force” which cannot be prevented, controlled or resisted by the ordinary individual and which is most often the direct cause of the impossibility of due performance of one or more parties to a contract. Our law stipulates that a Purchaser cannot demand delivery of goods (or immovable property) in its same condition in the event that such performance has become impossible due to vis major, such as the devastation which we are now experiencing during the current drought in Cape Town. 

In the absence of an agreement between the parties to the contrary, the Seller will therefore be discharged from his liability and obligation to perform if he was physically or legally prevented from performing due to vis major which the Seller was unable to foresee and which event was not due to his own fault and the Purchaser will remain liable for payment of the full purchase price of the property in terms of the agreement of sale. 

Another example of the cause for such a supervening impossibility of performance (vis major) is the promulgation of National Law and imposition of By-Laws and/or regulations by Local Authorities, which may be regarded as unforeseen by the public at large. Amongst several more detailed regulations which have recently been imposed by the City of Cape Town in an endeavor to curtail the adverse effects of the drought, persons are now formally prohibited from watering their gardens and/or filling their swimming pools, inter alia. Purchasers of immovable property in Cape Town (currently) are not entitled to demand performance by a Seller in this regard and may not institute a civil claim for such performance in contravention of the drought-protection measures imposed by the Local Authority. 

The question begs, what are the actual rights and responsibilities of the Seller in this instance? What recourse will a Purchaser have available due to the fact that he is now receiving a property in a significantly diminished condition for the same consideration? What action can either one or both parties take and how do the circumstances effect the estate agent? Does the agent have a particular duty in such an instance? 

The same principal shall apply in the context of lease agreements, which usually stipulate the respective rights and obligations of both the Landlord and the Tennant. In some instances, a standard lease agreement will further refer to the Tenant’s obligation to adhere to, and comply with existing laws and Municipal By-Laws in which instance, the Tennant will become liable for any transgression thereof. 

It is however not common for lease agreements to address hypothetical scenarios’ such as the parties rights and responsibilities in the case of exceptional circumstances brought about by severe water shortages in the instance of natural drought (vis major) and therefore, remains largely unregulated. 

What happens if your Tenant refuses to adhere to the Municipal By-Laws and regulations, fails to limit his water usage and you receive a fine as property owner? Can a Tenant refuse to pay the full rental due to mandatory limitation in water usage? How does the drought and its consequences impact your Tenant’s responsibility to maintain your garden and swimming pool? 

Contact me at [email protected]

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