Can tenants withhold their rent?

A good rental experience comes from a well-maintained home and a positive relationship between the tenants and the landlord. Sometimes one or both of these elements are missing, making rental a stressful process for all. If a landlord is not looking after the property and neglecting their duties, can a tenant withhold their rent?

The short answer is no, as the law will often side with the landlord if rental payments are being withheld on purpose. It is better to resolve any issue within the confines of the law to ensure the tenant isn’t evicted.

When rental payments have defaulted, one of the most common excuses given by tenants is that they don’t believe that the landlord is holding up their end of the lease by maintaining the property and keeping it in a condition fit for rental.

The problem with this excuse is that by not paying the rent on time, the tenant is also not holding up their side of the agreement. To make it worse, this is often a conscious decision which the courts will see as pre-emptive, often leading them to side with the landlord in cases where the property condition isn’t too bad.

What can the tenant do instead?

If the tenant is unsatisfied with the landlord and their duties, there are really only two main options in terms of the lease agreement:

1. Cancel the lease - If the state of neglect of the property is advanced or the relationship between the tenant and the landlord has become irreconcilable, then the tenant may opt to cancel the lease. In certain cases, the tenant may claim for damages, but it is best to seek legal advice before doing so. The tenant may have to pay a cancellation fee in minor disputes.

2. Continue the lease - If the property isn’t too bad but the tenant believes the landlord can do more, then the best option is to continue the lease but demand that the landlord step up their duties or risk facing further action. The tenant can approach a court and get an order that compels the landlord to comply with the lease obligations, or they can claim for damages if they are reasonable and foreseeable by the landlord. A tenant can also carry out emergency repairs or vital maintenance themselves and then claim the expense from the landlord or deduct it from the rent (seek legal advice before simply deducting it from rent). Lastly, a tenant can show a court how their right of occupation is being diminished and be granted an order to pay a lower rent in line with the condition of the property.

Withholding payment is not an option

The tenant cannot take it upon themselves to withhold rental payments or decide what amount to deduct for diminished rights of occupation. The courts have to grant an order first, so any actions must be performed within the rule of law and after permission is granted by a judge.

Similarly, the tenant cannot decide themselves what damages they are entitled to without approaching the courts first. These sorts of damages can be subject to various factors, whether it is repair costs undertaken by the tenant or medical bills as the direct result of poor maintenance of the property.

As it stands, the Consumer Protection Act No. 68 of 2008 (CPA) does not provide any legal rights for a tenant to withhold rent or deduct money on their own accord where the landlord fails to maintain the property. It does allow the tenant to make demands of the landlord to fix any issues with the property or to refund any maintenance costs carried out at the tenant’s expense.

The first step is for the tenant to ask the landlord to perform the required maintenance, and if they fail to do so, then carry out the maintenance themselves and demand a refund or rental discount to recover the costs.

It’s is important, as the tenant, to never presume that you can withhold all or a portion of the rental, even if your lease agreement doesn’t prohibit such an action. The best way to deal with disputes is through the legal system.

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