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LAW OF LEASE > Residual obligations of the lessor, and the remedies of the lessee on breach > Flashcards

Residual obligations of the lessor, and the remedies of the lessee on breach Flashcards

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1
Q

What are the residual obligations of the lessor, and the remedies of the lessee on breach?

A
  1. To make the property available on the due date
  2. To place the leased property initially in a condition reasonably fit for the purpose for which it was let
  3. To maintain the leased property in a condition reasonably fit for the purpose for which it was let
  4. To refrain from disturbing the lessee in their use and enjoyment
  5. To warrant against eviction
  6. To pay property rates and taxes.
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2
Q

What is the residual legal position irt to residential leases that don’t have an express agreement?

A

Property let is unfurnished, fixtures are to be included.

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3
Q

Which case deals with fixtures?

A

Van Rooyen v Baumer Investments.

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4
Q

Which case deals with where the due date was identified by implication?

A

Levy v Rose.

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5
Q

What remedies are available for breach of the obligation to make the place available on the due date?

A
  1. SP
  2. Cancellation (If time is of the essence, but usually an opportunity to cure the breach would have to be given[Levy])
  3. Damages (Levy)
  4. Remission of rental.
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6
Q

What is the obligation to place the leased property initially in a condition reasonably fit for the purpose for which it was let?

A
  1. To make the leased property available free of impediments to immediate occupation that should not be on the premises;
  2. So that it can be used and enjoyed;
  3. Structure of the thing leased must not be physically defective for its purpose when you take up occupation.
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7
Q

Which cases deal with the sub-obligation to make the property free of impediments to immediate occupation?

A
  1. Tshandu v City Council, JHB- eviction of previous tenants
  2. Bourbon-Leftley v Turner- removal of goods that interfere with the lessee’s use and enjoyment.
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8
Q

Which cases deal with the sub-obligation to ensure that the structure of the leased thing is not physically defective for its purpose when occupation is taken up?

A
  1. Poynton v Cran
  2. Harlin Properties v Los Angeles Hotel.
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9
Q

Which sections of the RHA reinforce the common law obligation to place the leased property initially in a condition reasonably fit for the purpose for which it was let?

A
  1. Section 4B (11)- habitability
  2. Section 4B (4)- inspection
  3. Section 5 (7)- listing of problems
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10
Q

What are the remedies for when the structure of the thing is physically defective for its purpose when occupation is taken up?

A
  1. Refuse to accept delivery
  2. Demand SP
  3. Cancellation
  4. Damages
  5. Remission of rental
  6. Repair yourself and charge the lessor
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11
Q

Which case deals with demanding SP?

A

Mpange v Sithole.

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12
Q

Which case deals with damages for breaching the sub-obligation of the structure of the thing leased not being physically defective for its purpose?

A

Nanucci v Wilson

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13
Q

Whose suggestion of the knowledge requirement does Nanucci v Wilson support?

A

Pothier.

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14
Q

Which case deals with the remission of rental?

A

Ntshiqa v Andreas Supermarket.

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15
Q

Which cases deal with the lessee repairing and charging the lessor?

A
  1. Harlin v Los Angeles Hotel
  2. Poynton V Cran
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16
Q

What is the obligation to maintain the leased property in a condition reasonably fit for the purpose for which it was let?

A
  1. Lessor must place the property initially in a fit condition for the purpose leased
  2. Lessor must maintain the property in a fit condition throughout the duration of the lease.
17
Q

What constitutes maintenance for which the lessor will be responsible?

A
  1. Making necessary repairs
  2. Replacing defective items
  3. Making good the use of or the service of things without which the lessee cannot have commodus usus
18
Q

What are Pothier’s guidelines to distinguish between a lessee and lessor’s obligations?

A
  1. Lessors are responsible for major matters, and where the problem is due to age, the deteriorating quality of things; where important matters are missing, or in disrepair
  2. Tenants are responsible for minor matters, and where maintenance problem is because of the actions tied to their use and enjoyment, or caused by their actions/actions of visitors.
19
Q

What are the remedies for breaching the maintenance obligation?

A
  1. Refuse to accept delivery
  2. Demand SP (Mpange v Sithole)
  3. Cancellation
  4. Damages
  5. Remission of rental
  6. Repair yourself and charge the lessor
20
Q

What are the lessee’s corresponding duties in the case of the breach of duty to maintain where the lessor is not in control of the property?

A
  1. Inform the lessor of the problem, and to request something be done about it
  2. Show that knowledge of the problem can be imputed to the lessor. (Only then can they seek formal SP).
  3. Lessor must be given an opportunity to remedy the problem
21
Q

Which case deals with imputed knowledge and the damages claim?

A

Hunter v Cumnor Investments.

22
Q

What is the duty to refrain from disturbing the lessee in their use and enjoyment?

A

It is a negative duty:
1. No right unreasonably to enter the premises without authority
2. Lessor, cannot without recourse to law, deprive the lessee of the use and enjoyment of the property and its accessories by cutting off/interfering with access or services or by physical ejectment or disopossession
3. Lessor may not take the fruits of the leased property
4. Repairs cannot be undertaken unless they are urgently necessary and the tenant has been given reasonable notice of this fact.

23
Q

Which cases deal with the sub-obligation to give the lessor an opportunity to remedy the problem before it will ever be possible to claim there is a major breach?

A
  1. Treasure-Chest v Tambuti Enterprises
  2. Shapiro v Yutar
24
Q

Which case deals with the negative duty to not unreasonably enter the premises without authority?

A

Soffiantini v Mould.

25
Q

What are the cases for prohibitions against cutting off or interfering with access or services or by physical ejectment or dispossession?

A
  1. Sishen Hotel v SA Yster
  2. Aggouras v MacFarlane
  3. Dias v Lawrence
26
Q

Which provision of the RHA criminalises changing locks or cut-off services?

A

Section 16(hA).

27
Q

Which case deals with the requirement that repairs cannot be done unless they are urgently necessary and the tenant has been given reasonable notice of this fact?

A

Mackay v Theron.

28
Q

What are the remedies for breach of duty to refrain?

A
  1. Interdict (Soffiantini)
  2. Mandament van spolie (Aggouras)
  3. Cancellation (Sishen; Dias)
  4. Damages/remission of rental

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