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Barend B.
Barend B., Legal Consultant
Category: South Africa Law
Satisfied Customers: 1346
Experience:  BLC LLB (Pret) LLM (Augsburg)
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I was renting an apartment through an estate agent for about

Customer Question

I was renting an apartment through an estate agent for about a year and a half. Early this year around May, water started coming out of the toilet filling up half of the room space such as I had to stand on something to be able to use the toilet. I spoke to the agency to come and fix it and it took a month and a half to send someone to come and fix it. The person then said he cannot fix it and will tell the agency.After about a month they sent the same guy to come and have a look at the problem and he again said he cannot fix it as the problem was on the wall, it looks like a pipe had burst. I then decided after begging them to send someone to fix it I decided t withhold my rent and only then did they send someone,By that time the place had a bad stench from the water and I told them I want to leave immediately. I asked them to take my deposit for the outstanding rent which is in August and I will not serve notice as I cannot stay in the place anymore. The agent insist I must pay rent for August and September if I do not want to serve notice. I refused and told them to take that from my deposit and have left the property.Was I wrong in doing that as I felt that they broke their contractual obligations by not attending to the problem. It only got fixed when I stopped paying rent. They promised to blacklist me if I do not pay. Do I have any legal recourse? I also did not have a contract. I since signed the contract last year.
Submitted: 3 months ago.
Category: South Africa Law
Expert:  PhillipsEsq replied 3 months ago.

Hello: This is Phillipsesq. Welcome to JustAnswer! I am reviewing your post, and I will post my response very shortly. Thank you for your patience.

Expert:  PhillipsEsq replied 3 months ago.

No, you were not wrong for withholding the deposit. The Landlord cannot fail to make needed repairs and then expect you to pay rent. The Landlord violated your rental agreement by not attending to the flooding in your bathroom in a timely manner which made the situation worst. You did the right thing by withholding the rent.

Customer: replied 3 months ago.
Hi PhillipesqPlease read the agents' response below and please advise:Unfortunately you cannot use your deposit as rent. Your lawyer, who have not contacted us yet, should have told you so. You did not give one month’s notice so you are liable for September’s rent. Where exactly will your friend give the keys of tonight because we close at 4pm?
You can ignore my messages and not pay, it will be handed over to our lawyer and you are going to be responsible for all legal costs. This matter could have been solved in a decent way but you were unreasonable and you are in bridge of contract.
I doubt if your lawyer will proceed with this because it is unfortunately how the law operates and the excuse you have of the circumstances is not good enough. I explained to you that the owner was waiting for the insurance to fix the problem, your plan was to move out anyway without giving notice.
Your file will be handed over on the 7th of September if payment is not made
You are welcome to phone Louise if you disagree(###) ###-####
Expert:  aminlawfirm replied 3 months ago.

Welcome to Just Answer! My name is Maverick. Please give me a few minutes to review, analyze and/or research your inquiry and I will be back. Thank you for your patience.

Expert:  aminlawfirm replied 3 months ago.

You may want to just wait and see if they sue and then file a counterclaim for breach of the implied warranty of habitability since the LL did not timely repair the flooding problem. If you want to take a proactive approach in the event that they do not sue you, but simply decide to black list you, then you can sue the LL in what is known as a declaratory judgment action where you ask for an order that states that you owe the LL nothing under these circumstances. In other words, because the LL breached the implied warranty of habitability, you are excused from paying any more rent that what the LL already kept in the form of your deposit.

Here is the IL law on that. Here is a sample suit to use as a go-by.

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Customer: replied 3 months ago.
Hi, I just want to know will thisbe applicable to South African Property law?
Expert:  aminlawfirm replied 3 months ago.

For some reason I thought this was for Illinois law. I did not realize you were asking about SA. The same general concepts may apply. But, I will opt out and let SA expert try...

Expert:  nyclawyer replied 3 months ago.

different expert here.

do you still need an answer?

Expert:  nyclawyer replied 3 months ago.

let me know and what specifically you would like answered at this point. thanks.

Customer: replied 3 months ago.
I am South African and looking for a response from a South African lawyer. Is that possible?
Expert:  Barend B. replied 1 month ago.

Good evening,

It seems as if at long last you have reached a South African law expert. My apologies for the confusion.

Estate agencies know nothing about the law. The contract is their bible. They do not realise that if their lawyer sues you for breach (you can tell the Estate Agent it is "breach" and not "bridge") of contract, you will be entitled to defend the matter and file a counterclaim for the owner's breach of contract and that you can claim damages as well.

But to just tell the estate agent that, will not work. In my opinion you should consult an attorney to write a strongly worded letter to her. In the letter the attorney must threaten that if they take any action against you, not only will you file a counterclaim (which, if quantified should be more than the outstanding rent) for the owner's breach of contract (waiting for the insurance is no excuse - what they should have done, is keep you updated and if it could not be attended immediately, arrange other suitable accommodation for you until it is fixed, alternatively ask you to fix it and deduct it from the rent), but also report their conduct to the Estate Agency Affairs Board. They have been trying to intimidate you and have misled you about the true legal position. Furthermore if they blacklist you under these circumstances they will make themselves guilty of intentional crimen iniuria, and you will lay criminal charges and sue for defamation as well. You gave them 3 months to fix the problem, and it is only because of the problem not being fixed that living there became unbearable. No magistrate will agree with them. The law in this case is on your side, not theirs.

Regards,

BB

Customer: replied 1 month ago.
I am glad that you were able to respond to my question. I can already hear that the person responding is a South African. The agency is now responding to me through a debt collection company and the amount I was initially charged has now changed. This is what she now want me to pay for. This is correspondence from the debt collector. Some of the things quoted are things that they could not fix whilst I was staying there and she now wants me to pay for them. Please advise. I am tempted to ask her to proceed with legal action as I do not have the time to be arguing with her.Regards
Expert:  Barend B. replied 1 month ago.

Good morning,

Although the debt collector indicates a registration number on her letterhead, I think you must just verify with the Debt Collectors Council whether she is in fact registered and in good standing, because when I tried to look up her registration on their website, no information was available. If she is not registered or in good standing, she may not act as a debt collector.

I still stand by my previous advice, let an attorney send them a strongly worded letter. If they know anything about the law, they should know that when one party owes another party and vice versa, the one party can set off what he owes against what the other party owes him. If X owes Y R100, and Y owes X R100, then using the principle of set-off, no one owes anyone anything.

You need the attorney to send the letter now, before they start legal action, because if you inform them in time of your counterclaim and they still proceed with legal action, it will strengthen your case that they are litigating in bad faith. It will also show them you are serious i you send them an attorney's letter.

Regards,

BB

Customer: replied 1 month ago.
Hi BarendThanks for the advise and prompt response. You will not be able to do that or will it be an extra cost or this is not the service that you cover?Regards
Expert:  Barend B. replied 1 month ago.

Good morning,

It will be part of premium service, which is extra (about $25).

Regards,

BB