It is a world-wide phenomenon that crimes increase markedly over the festive season as people have more idle time, alcohol consumption increases, and homes are left vacant.
South Africa is no different. An analysis by the Institute for Security Studies (ISS) into monthly crime statistics showed a whopping increase of 50% of murder and serious assault cases during December each year over a five year period, and increases of 8% for house robberies and burglary during the festive months, according to a Mail & Guardian report (https://mg.co.za/article/2014-12-17-do-crime-levels-spike-in-south-africa-over-the-festive-season).
On an ordinary day, safety around the house is already a major concern. For the 2017 statistics, the ISS (https://issafrica.s3.amazonaws.com/site/uploads/propertycrime-factsheet.pdf) notes an average of 676 homes being broken into on average each day.
Against this backdrop, all households must take precautions at home if all they want for Christmas is Mariah Carey. There is no shortage in security solutions; ranging from the more traditional burglar bars, extra-strength security doors and alarm systems, to the more advanced garden motion detectors, booby traps and smokescreen solutions.
However, these all include improvements to the property and a very large proportion of households do not own the house.
Sakkie Burger, commercial and property law specialist at VDT Attorneys, says security improvements to a house often become a sticky point between tenants and landlords. “In law, fixtures to a property will ordinarily become part of the house and tenants are wary to make such improvements at the risk of losing their investments when they move out. This is why a properly drafted lease agreement and clear communication between the parties is essential.”
So, whose problem is security anyway?
Firstly, the building itself is the property and responsibility of the landlord. If a building suffers damage such as broken windows or cut burglar bars during a break-in and there was no gross negligence from the tenant, the landlord would be responsible to pay for the repairs. A tenant cannot insure a building he or she doesn’t own.
Secondly, the contents of the house are the tenant’s responsibility. Household content insurance is therefore the responsibility of the tenant. “Tenants should also be aware of their insurance company’s requirements. Many require, for example, that all windows that can be opened must be covered with burglar bars before any claim would be entertained,” Mr Burger says.
The landlord’s responsibility for physical security features at the house is regulated by the Rental Housing Act, as amended.
Subsection 4B(11) of the amendment Act of 2014 requires landlords to make available a ‘habitable’ house, which is defined as a dwelling being safe and suitable for living taking into account the following:
- Adequate space;
- Protection from the elements and other threats to health;
- Physical safety of the tenant, the tenant’s household and visitors; and
- A structurally sound building.
It goes without saying that the house should therefore meet minimum safety criteria such as doors to the outside that can lock properly and intact windows.
However, it becomes more contentious to decide what adequate physical safety features are for a specific property in a specific neighbourhood given the crime situation in the country.
Mr Burger provides these five tips to tenants and landlords to prevent disputes about safety:
1. Make provision for security features in the lease agreement
Tenants shouldn’t assume that any safety features already installed at the property are in working order. Alarm systems, for example, must be tested when moving in. If a landlord guarantees that these features are in working condition, he or she can be held responsible.
2. Think twice and discuss the issue before effecting changes
Most lease agreements prohibit tenants from effecting changes to the property without permission. Nothing prohibits a tenant from installing a stronger lock to a garage door or installing portable, wireless garden motion detectors, but changes to the structure of the property are a different story. This could be as simple as drilling holes in walls to install burglar bars or installing wiring in the roof for an alarm system. Very few landlords would object to the installation of security features at their property, but disputes may arise about the quality of materials, workmanship and ownership of the installed equipment.
3. Be clear on who will pay the ongoing bill
Many security features also include a monthly charge for monitoring or an increased utility bill which may be included in the rental agreement. Alarm system companies often require the tenant to sign a fixed-term contract for monitoring services which would remain the tenant’s responsibility even after moving out.
4. Use negotiation and bargaining tools
Landlords want satisfied, well-paying tenants. Increased security features also increase the value of the property. Landlords will therefore often try to accommodate tenants on safety issues. See if the landlord is not prepared to pay for the improvements based on the increased value of the property, or at least pay part of the bill. A strong indication that security features are necessary and not just a luxury would be additional insurance costs or lack of insurability for household contents due to a lack of safety features or a fair comparison with properties surrounding the rented house. If every property in the street has razor wires or electric fencing on top of a tall wall and the rented house has no fencing at all, it is clear indication and bargaining tool to show that the house is not adequately safeguarded.
5. Act in good faith when you move out
When you move out, do not remove fixtures to the house if it was not agreed upon. Landlords will try to recover the expenses and restoration costs from you.
Contact Sakkie Burger at VDT Attorneys for specialist advice on commercial and property law.
Copyright @ VDT Attorneys® November 2018