No matter how frustrated you may be with your landlord over a maintenance problem, you can’t as a tenant just decide not to pay your rent – or to pay only part of it – to try to “force” the issue.
“The Rental Housing Act is very clear on this,” says Andrew Schaefer, MD of property management company Trafalgar*. “It requires all tenants to pay their rent on time and in full, and it says that not doing so is a violation of the rental agreement which may entitle the landlord to cancel the lease.”
However, he notes, in return for this obligation on the tenant’s part, the Act also provides that the landlord must:
· Hand the premises over to the tenant in a reasonable condition and in a good state of repair;
· Ensure that the tenant has “undisturbed use and enjoyment” of the premises and that the electricity, plumbing, ventilation, doors, windows, air-conditioning, and any appliances on the premises are kept in good working order; and
· Maintain the property at all times – although sometimes the tenant will agree to take on certain responsibilities such as mowing the lawn or cleaning the pool and this should be detailed in the maintenance clause of the rental agreement.
“And tenants are not helpless to do anything about it if the landlord does not hold up his end of this bargain,” he says, “although in order for them to take action there must be a problem that is not merely inconvenient, but actually interferes with their proper use and enjoyment of the property”.
“If there is such an issue, the first thing the tenant needs to do is advise the landlord (directly or through the managing agent) in writing, and give him a reasonable period to rectify the problem or get someone to carry out whatever work is needed. A good rule-of-thumb is to allow 14 working days.”
Schaefer says that if the landlord does not attend to the problem within this time, the tenant then has a choice of whether to cancel the lease or attend to the problem himself, keep all the receipts and cash slips as proof of cost and deduct this amount from the rent due.
However, he cautions, such decisions should never be made arbitrarily and without proper communication. “Tenants should really try to let the landlord or his agent know what they intend doing, and hopefully get him to agree before they go ahead, as there is then much less likelihood of a month-end or ongoing dispute about the rent”.
“The exception, obviously, is if there is an emergency like a burst geyser or an electrical fault and the tenant needs to take immediate action to prevent further damage to the property – but again, he will need to produce receipts to justify any deduction from the rent or claim for reimbursement from the landlord.”
Schaefer also notes that the nearest Rental Housing Tribunal is the appropriate escalation channel for any dispute cannot be directly resolved between tenant and landlord.