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tear. In the case of accident and vis maior, neither fiar nor liferenter is bound to repair. The scope of the fair wear and tear exception is difficult to ascertain, for it is also commonly said that the liferenter must carry out ordinary repairs and do what is necessary to preserve the subjects in a habitable and tenantable condition.162 If the liferenter strays beyond repairs and improves the property, he/she is presumed to do so for his/ her benefit.163 It is thought, therefore, that the liferenter will be liable to repair the heating system if it becomes defective, but not to replace it if it merely becomes obsolescent (for that would be an improvement). If the roof is damaged in a storm, neither party will be bound to repair as it was caused by vis maior. Repair of the dilapidated fences falls, most likely, to the liferenter as would repainting (provided that painting was needed to maintain the property and not to improve it). On ordinary delictual principles, it will make a difference if one party caused the damage.

South Africa

The question deals with a general obligation on the part of the landlord to maintain the property in a condition reasonably fit for the purpose for which the property is let. The ‘purpose’ of a lease is determined by construction of the terms of the contract and the surrounding circumstances, including its previous and known intended use.164 By considering the purpose of the lease, South African law effectively draws a distinction between urban and agricultural leases. Imperfections attributable to dilapidation or depreciation by reason of lapse of time, weather and normal use are regarded as rendering the property unfit for its intended purpose and are thus the responsibility of the landlord.165

Defective parts must be repaired or replaced by new ones, for example, new guttering,166 and structural alterations167 must be made if the defect is of such a nature that it interferes with the proper use and

162 Caterina, ‘A Comparative Overview’, pp. 95–8. 163 Erskine, Principles, II. 9. 33.

164Pothier, Obligations, para. 23; Weinberg v. Weinberg Bros (Pty) Ltd. 1951 3 SA 266 (C) 272G.

165See Pothier, Obligations, para. 106; Voet, Commentarius, 19.2.14; Kerr, ‘Lease’, paras. 164–6.

166African Theatres Trust v. Estate McCubbin 1919 NPD 277 280 (new guttering).

167Harlin Properties v. Los Angeles Hotel 1962 3 SA 143 (A) 150.

enjoyment of the property. If the landlord is informed of defects, he/she is obliged to investigate the cause and make the necessary repairs.168 In the light of the above, a modern residential premises will no longer be considered fit for its purpose if the central heating system becomes defective.169 Likewise, a farm will no longer be fit for its purpose if the fences become dilapidated. There will thus be an obligation on the landlord to repair the central heating system and the dilapidated fences and, if necessary, to replace them. Since the replacement of an obsolescent nondefective central heating system with a more modern system cannot be classified under ‘repair’, it will be considered an ‘improvement’, and

will fall outside the landlord’s obligations.170

From the above it is clear that, in principle, a tenant is only liable for small repairs or replacements. These are the so-called ‘tenant’s repairs’ for which custom has made him/her liable.171 The assumption is that these repairs are occasioned by the fault of the tenant or his/her servants and are not necessitated by age or the inferior quality of fittings (like doors, windows, shutters, hinges and locks) that have fallen into a state of disrepair. These items are presumed to have been in good condition if the tenants entered into occupation without complaint and without obtaining an acknowledgement from the landlord that certain fittings will be replaced or repaired.172 Thus the tenant will only be liable for replacing or repairing a fitting if he/she ought to have had knowledge thereof at the time of entry.173 Under the Rental Housing Act 50 of 1999 (s 5), the landlord and tenant are compelled jointly to inspect residential property before the tenant takes occupation to ascertain the existence of defects.

The principle therefore is that the landlord is liable for all major structural repairs and all smaller repairs occasioned by age or inferior quality of the fittings involved. If a defective state of affairs does not fall into any of these categories, the presumption is that the defect has been caused by the fault of the tenant and that he/she is liable for the repairs. Thus the ßaking off of the paint on the building would be considered the result of ordinary wear and tear and within the landlord’s duty to keep the property fit for the purpose for which it was let. If the dilapidated

168Salmon v. Dedlow 1912 TPD 971; Cooper, Landlord and Tenant, pp. 98–9.

169See Poynton v. Cran 1910 AD 205: a hotwater cylinder is an essential part of a hotel.

170See Kerr, ‘Lease’, para. 162(b). 171 Cooper, Landlord and Tenant, pp. 111–12.

172Pothier, Obligations, paras. 219 and 220, cited with approval in Bresky v. Vivier 1928 CPD 202 204–5.

173Shapiro v. Yutar 1930 CPD 92 101.

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fences cannot be ascribed to the negligence of the tenant, the landlord will also have to repair them. Where the roof is damaged in a storm, this will normally be considered damage caused by vis maior and not attributable to the fault of the tenant. The landlord will therefore be responsible for repairs and will normally take out insurance against such risk.

In the case of material defects which render the property unfit for the purpose for which it is let, the tenant can cancel the lease174 and recover any foreseeable loss by way of an action for damages.175 Alternatively, the tenant may request that the necessary repairs be made176 and if the landlord delays claim damages for loss suffered; sue for a court order compelling the landlord to make the repairs; or effect the repairs and deduct the necessary expenses from the rent due.177 In cases where it is unclear whether the work required amounts to repair, structural alteration or improvement, the tenant should seek the intervention of the court.178 Finally, the tenant may claim a reduction of rent proportionate to his/her temporary or permanent deprivation of use, provided the inconvenience suffered is not slight.179

A landlord is of course not obliged to repair damage or defects caused by the negligence of the tenant or those for whom he/she is responsible.180 The tenant is obliged to make reasonable use of the premises and exercise the same standard of care as a reasonable person would exercise with regard to his/her own property. In certain instances the tenant must take positive action to ensure that the property remains in a proper condition. The tenant of a vineyard must therefore work and manure it properly and in a timely manner and cultivate it in the manner of a good and careful winegrower.181 The tenant of a hotel must exploit it in a manner that attracts and not discourages customers.182

Consequently, the tenant will only be liable if the damage or unfit state of affairs is attributable to his/her negligence.183 He/she will not be

174See Kerr, ‘Lease’, para. 163; Cooper, Landlord and Tenant, pp. 98–110.

175Cooper, Landlord and Tenant, pp. 90, 108–10. The landlord is liable if he/she knew or, by reason of his/her trade or profession, ought to have known, of the defective condition.

176Cooper, Landlord and Tenant, p. 89. 177 Ibid. 107–8.

178Poynton v. Cran 1910 AD 205 227.

179Pothier, Obligations, para. 141; Cooper, Landlord and Tenant, pp. 100–7.

180Brandt v. Kotze 1948 3 SA 769 (C); Cooper, Landlord and Tenant, pp. 99, 223–33.

181Pothier, Obligations, para. 190; Voet, Commentarius, 19.2.29; Manley van Niekerk (Pty) Ltd. v. Assegai Safaris and Film Productions (Pty) Ltd. 1977 2 SA 416 (A) 423B-C.

182Pothier, Obligations, para. 189.

183Cooper, Landlord and Tenant, p. 223; Pothier, Obligations, para. 199; North West Hotel v. Rolfes, Nebel and Co. 1902 TS 324 336.

liable where the damage was caused through vis maior, a latent defect in the premises, or through the act of a third party for whose acts the tenant is not liable.

We have established that under South African law the landlord will be liable in the normal situation where the paint on the building flakes off owing to ordinary wear and tear. South African law, however, apparently expects the tenant to warn the landlord of the defect. Failure to do so will mean that the tenant is taken to have had knowledge of the consequences of the defect and is precluded from claiming costs for further damage on the principle of volenti non Þt iniuria.184 The courts have not, however, gone so far as to decide that the cost of repairing the more serious damage must be borne by the tenant. If, however, the tenant has complained of the unfit condition of the building, the landlord’s knowledge of the unfit state of affairs will render him responsible for the more serious repair needed because of the delay. However, the landlord will only be liable for loss suffered by the tenant on account of the delay if the landlord knew or by reason of his/her trade or profession ought to have known of the defective condition.185

The default rule places the landlord under a general obligation to place and maintain the property in a condition reasonably fit for the purpose for which the property is let.186 The ‘purpose’ of a lease is determined by the use of the premises as gathered from the terms of the contract and the surrounding circumstances, including its previous and known intended use.187 This default rule is not mandatory and the tenant may assume a more extensive liability for repairs in the contract of lease. The burden of proving such an assumption is on the landlord and the clause embodying such an assumption is as a rule strictly construed in order to saddle the tenant with as little additional liability for maintenance as possible.188

The usufructuary (and the usuary and habitator) must exercise their rights sensibly (arbitratu boni viri) and exploit the property in accordance

184Cooper, Landlord and Tenant, pp. 110–11.

185HeermanÕs Supermarket v. Mona Road Investments 1975 4 SA 391 (D) 393D; Cooper, Landlord and Tenant, pp. 108–10.

186See for usual clauses in leases, Kerr, ‘Lease’, para. 162; Cooper, Landlord and Tenant, p. 98 n. 1; Proud Investments v. Lanchem Inter 1991 3 SA 738 (A) 748A-C.

187Pothier Obligations, para. 23; Weinberg v. Weinberg Bros (Pty) Ltd. 1951 3 SA 266 (C) 272G.

188See Cooper, Landlord and Tenant, pp. 112–19 for the content and interpretation of various maintenance clauses, proof of breach and the landlord’s remedies.

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with its intended use or customary exploitation. The property must be restored in a proper condition without impairment of its substance (salva rerum substantia) excepting ordinary wear and tear189 and loss and depreciation not caused by them. The usufructuary may not destroy the property, impair its value or change its character.190 Consequently, the usufructuary is in principle obliged to make ordinary repairs and bear the expenses for maintaining the property in the state in which he/ she received it.191 Extraordinary repairs and expenses must be borne by the nude owner.192 The usufructuary is responsible for temporary and the nude owner for permanent maintenance of the property.

If the central heating system becomes defective, the usufructuary will be responsible for repairs. If it becomes obsolescent, replacement will be a major item of maintenance to be borne by the nude owner. However, neither the owner nor the usufructuary will be obliged to do anything about it. If the usufructuary replaces the system, it will be classified as an improvement rather than a repair and no compensation can be claimed, except perhaps on the ground of negotiorum gestio (unauthorised administration). If the roof of the house is damaged in a storm, the major repairs needed will be the responsibility of the nude owner. Thus, if the usufructuary repairs the roof, he/she will be entitled to claim compensation from the owner.193 If the paint of the building ßakes off, the resultant ordinary repair must be attended to by the usufructuary. The same is true if the fences on the farm become dilapidated. However, if the repair involves major expenses, the nude owner will have to foot the bill,194 unless the need to repair can be traced back to a lack of care by the usufructuary.

If the usufructuary or any person for whom he/she is responsible causes the damage negligently,195 he/she will be responsible for the cost of the repairs. Consequently, if the major damage to the building can be traced back to the usufructuary’s omission to undertake ordinary repairs (paint flaking off), the usufructuary will be liable for the cost of any resultant major repairs to the building. Similarly, if the

189See Gibaud v. Bagshaw 1918 CPD 202.

190See cases quoted by Van der Merwe, ‘Servitudes’, para. 434.

191Voet, Commentarius, 7.9.1.

192See ibid. 7.1.36–8; Van der Merwe, ‘Servitudes’, para. 436.

193Philps v. Cradock Municipality 1937 EDL 382; Van der Merwe, ‘Servitudes’, p. 437.

194See Ex parte Borland 1961 1 SA 6 (SR).

195By omitting repairs that a reasonable person would have undertaken in the circumstances.