[Question] Tenant's rights

[Kirsten]

Hi, last month an underground water pipe burst on the property we are renting. Everything has been repaired and our landlord paid for the repairs. The plumber also sent through a form to the landlord for her insurance. However, we have now been sent the water bill for R7000 and told that it is our responsibility to pay for it and then claim back from the municipality. Is anyone able to advise me what our rights are as tenants in this regards? We feel that the landlord needs to claim from insurance (her own or municipal).

TIA for your assistance.

[Basment Dweller]

This is by far one of the most frustrating things to happen as a landlord and a tenant.

I've been on the landlord end of this problem and its a very frustrating and costly thing to happen for both parties.

From my perspective, the tenant is responsible for the cost of the water bill until evidence and proof can be provided from what caused the water loss. Did the tenant fill up one of those blow up swimming pools? was the cistern running? did the tenant leave a tap on? negligence? etc

In this instance it was obvious that the burst was to blame.

So, the landlord needs to determine if the water loss was the failure of government plumbing infrastructure or the landlords infrastructure.

If the landlord can get recourse from insurance or the municipality, then you as the tenant are off the hook and the landlord should charge you a monthly average for the water and pick up the tab for the rest of the bill and wait to be compensated for the loss amount. This is what happens when a geyser bursts, the landlord pays upfront for the cost and gets refunded later.

However, the landlord may not be covered by the insurance nor the municipality, in which case you as the tenant are now on the hook for this bill.

So what now?

In my view, both parties are responsible for the cost on a 50/50 basis.

The landlord is responsible because the infrastructure that was provided failed and now incurred a cost.

The tenant is responsible because all issues with the property need to be identified and reported immediately before large costs are incurred. And this is were the sticky argument comes into play if the leak was invisible and only exposed itself when the water bill arrived. Well the landlord could argue that if the tenant did water meter spot checks on a regular basis then the leak could be detected early and prevented the water loss, so there's no excuse.

If I was the landlord in this instance, I would ask you as the tenant if we could split the cost for the water bill. Home ownership comes at a price for the landlord, but home possession also comes with responsibilities for the tenant. Fair enough?

[Kirsten]

Thank you for your response. I agree that as tenants, we do have certain responsibilities to look after the house we are renting. However, the problem we has with the burst pipe is a common one in our complex because of the poor job done on the piping when the complex was built, and our landlord told me they had had this same problem before at the house when I phoned her to inform her about it. To me, this was a pre-existing potential problem when we moved in and it was only a matter of time before the pipe burst. Most homeowners in the complex have brought their water pipesabove ground as a result of these problems. Ours have too now. I'm hoping the landlord can have a successful claim with her insurance.

[Justloadit]

Please note that this is my personal opinion.

I would say that the landlord is responsible for the damages and loss incurred.
The landlord as owner of the property, has profited from the rental of the property over time, and that means that wear and tear becomes the landlords responsibility.

I will use an example. Lets say that I need to rent the neighbors car to go and do some shopping. On the way to the mall, the clutch fails, and comes to a grinding halt.
As the current responsible person, I get the vehicle towed to a garage to fix the clutch, as I need to do my shopping, and leaving the vehicle where it failed could cause it to get stolen or damaged by theft. My responsibility is to ensure that the costs are reasonable.

The fact that I was driving, does not make me responsible for the failure of the clutch. The original owner of the vehicle enjoyed the use of the vehicle until the point of failure. I am only liable for the fuel and oil that may use to do the trip. The cost of repair and towing of the vehicle is the original owners responsibility, as the original owner should have ensured that the vehicle was in sound running condition.

The tenant did take the responsibility to immediately inform the landlord of the failure of the water pipe, so was not negligent in any way. Besides this, consuming water through a pipe does not cause wear and tear, as with a mechanical machine, and the failure of the pipe was attributed to other factors which are beyond the tenants responsibility and ownership.

[Basment Dweller]

Justload I 100% agree with you your wear and tear issue, this is a landlord issue. It also looks like in this case the tenant handled things well and the landlord is just slapping her with the bill and hoping the tenant will pay without being reasonable or coming to a compromise. If I was the landlord I would ask the tenant to contribute something to the bill and if the tenant declines then I'd just suck it up to school fees and pay. And make sure the pipe is fixed so this never happens again.

Having said all this, I still think tenants need to be penalised and charged for water loss to a certain extent otherwise there would be no motivation to be vigilant about it when there's a slow leaking toilet, or leaking pipe etc. The tenant is in possession of the property and needs to be accountable.

And another point, how do we determine how much water was lost due to the burst pipe and how much did the tenant actually consume? You might say work out an average but there really is no way to know. Tenants do crazy thing like siphon water, fill up portable swimming pools etc. so where do you draw the line?

I'm interested to see if the insurance will pay the landlord for this because I was swiftly denied when this happened to me.

[Kirsten]

Thank you for your comments. The landlord's insurance has said that they don't cover for water loss so she won't pay. She suggested we go to our insurance, but we are only insured for household contents, not the building, pipes etc. We are responsible water users and excellent tenants-our water and electricity bill has been almost exactly the same for the year we have been there so there won't be any dispute about averages in that regard. Best way forward is to try keep a good relationship with our land lord but still stand our ground I think.

[sterne.law@gmail.com]

Do you not have municipal insurance?

[Richard S]

'the burst pipe is a common one in our complex because of the poor job done on the piping when the complex was built''

Does the Body Corporate not have a role to play here?

[Houses4Rent]

A few thoughts:

If water was billed it went through the meter which I assume is not faulty. So council is NOT responsible as their buck stops at the outlet of the water meter (consumer side).

What is municipal insurance? Interesting, never heard of it. It could be attempted to negotiate with the council as it was neither the tenants nor the ower fault (plead unaffordability). If they write of 50%, the tenant can pay 25% and the owner the rest 25%. Or something like that.

If burst pipe was reported immediately how come so much water could still escape? Was the first action not to switch (mains) off? Me thinks even an underground leak would show itself fairly quickly as the water should come up once the soil below is saturated.

If its a complex and common property then they are liable, but this does not sound to be the case.

Are the pipes above ground plastic (sun will destroy) or copper (thieves will take)?

If its a known problem and responsible party (developer?) is over the hills there is little recourse.

A smart owner which saw burst pipes left right and centre should have maybe fixed it BEFORE it bursts and therefore would have saved the water loss.

[Dave A]

What is municipal insurance? Interesting, never heard of it.

Based on the question, I guess the Ethekwini water loss insurance scheme is only a Durban thing. Reading that page, I note this though:

Under this scheme, only individually metered domestic water customers may insure themselves against part of the additional water charges as a result of an undetected underground leak on their property.

Given that Kirsten is in a complex, that may be a problem.

Given we're talking about Durban, I'm also guessing the municipal utility bill is going to the owner or the complex body corporate, and not the tenant.

I'd suggest the extra water usage is consequent of the fault, and the party responsible for the repair would also be liable for that consequent expense.

From a strictly contractual point of view, who is responsible will depend first on the rules as defined in the sectional title scheme or the share block scheme. If it falls within the individual section, then you would need to examine the rental agreement.

Mind you, even if it falls to the tenant in terms of the rental contract - if the owner was aware of a problem in the infrastructure (which it seems has been conceded already) and failed to disclose this to the prospective tenant prior to the signing of the contract, I'd lean pretty hard on Richard S's point above - doesn't the body corporate or the owner have a role to play here?

[Houses4Rent]

Based on the question, I guess the Ethekwini water loss insurance scheme is only a Durban thing.

"The nominal monthly premium, which is raised on the consolidated bill and forwarded to a private insurance company, covers part of the cost of additional water used as a result of the leak."
Looks like a third party inurance and council is only collecting the premium. Which leads to the question whether the owners/body corporates building insurance might have such water los cover on that policy already.

I'd suggest the extra water usage is consequent of the fault, and the party responsible for the repair would also be liable for that consequent expense.

That would imply that it had been repaired before and was still under warranty. Otherwise one cannot make the new plumber responsible for the old plumbers or original developers f-up.

[Dave A]

I'd suggest the extra water usage is consequent of the fault, and the party responsible for the repair would also be liable for that consequent expense.

That would imply that it had been repaired before and was still under warranty. Otherwise one cannot make the new plumber responsible for the old plumbers or original developers f-up.

I suggest we missed each other on the point -

My point is if the owner is responsible for the cost of repair, it is the owner that should also be responsible for the extra water bill as it is consequent to the damage being repaired.
Similarly if it is the tenant's responsibility, or the body corporate's, etc. ...

[Kirsten]

Our landlord has now got back to us to say that she has since found out from the people who drafted the lease agreement that it is her responsibility to pay for the water bill. Thank you to everyone for your input.