LEGAL
When written lease agreements are drafted, both parties tend to carefully review the entire document, including the fine print, negotiate changes, and then sign. In significant transactions, legal advisers are often consulted, and the process can sometimes take time. Afterwards, the document is signed and stored, and it is routinely not revisited.
Months or years later, when a question arises regarding the rights and duties of the tenant and / or landlord, in today’ s modern world, the question is often asked on social media or even to an AI service. Everyone has forgotten about the written lease agreement. The scope and / or extent of the tenants’ rights would inevitably be detailed in the document. So, consult that first. Only if there is no specific provision in the lease, then a further approach is needed.
A principle in law
This principle originates from our common law derived from Dutch authorities and has been repeatedly included in judgments. Attempting to apply principles of fairness, Ubuntu, or constitutional law does not offer further assistance.
Like most rules and principles of law, there are exceptions. In this case, an exception might be essential repairs. If the water pipe to the kitchen breaks and causes flooding in the apartment, the cost of urgent replacement would be recoverable from the landlord. However, be aware of the limits. No court will accept an argument that, while repairing the taps, it was also necessary to install marble countertops. That won ' t be successful.
Note: The foundation of the common law, now most accurately called South African common law, is Roman-Dutch law, which has its origins in Roman law and was later developed and applied in Holland and other Dutch provinces during the 17th and 18th centuries.
Ref: Pothier, Lease § 86 – 92- from the Roman- Dutch foundation.
Return in the same condition you first leased
Most leases include a standard clause stating that the premises must be returned to the landlord in the same condition as received, fair wear and tear excluded. Therefore, if you decide to paint the walls red or to remove and replace the front door, a simple reading of the lease clearly indicates that the wall must be repainted to its original colour and the door removed and the original one refitted.
Costly alterations – ask before implementing
But what if you want to install a new kitchen? Must you tear out your investment of many tens of thousands of Rands and reinstall the old units? There, in this case, that is also probably covered by the lease. Usually, if you want to make significant alterations, you just need to ask for permission and negotiate what will happen when you move out.
What is material is a matter of simple logic. Replacing cupboard door handles would not be considered a material change, however a new set of built-in cupboards is indeed material.
So, to prevent uncertainty and potential disputes at the end of the lease, the correct course of action, as is often the case, is straightforward to communicate. Without proper communication, making unapproved alterations can lead to disputes, which in turn can become costly.
If an alteration is made without agreement or consent in the lease, or without a subsequent agreement( preferably in writing), then it will be at the landlord’ s discretion whether to accept the alterations or to require their removal and the restoration of the original. This would be the landlord ' s right, and in the absence of received consent, the tenant has no right to be compensated for the costs of the improvements or alterations.
About the author
Advocate Bryan Hack has served as an Acting Judge in the High Court, Cape Town Bench, is a member of the Cape Bar, and is an experienced counsel in property and commercial matters. He writes for TO BUILD in a spontaneous and unpaid capacity, aiming to promote the cause of the law within the property industry. He can be contacted on hack @ capebar. co. za or + 27( 0) 21 423 5441.
www. tobuild. co. za | summer 2025-26 79