Most residential lease agreements have a provision requiring the tenant to maintain the garden of the leased premises. If there is a swimming pool on the premises, the tenant is usually also tasked with keeping it in a good and clean condition.

The current water restrictions that are in place in Cape Town cast a spanner in the works. It is obviously not possible for a landlord to hold a tenant liable for deterioration of the garden and the dying of plants as far as this relates to the prohibition on watering the garden, currently imposed under the level 4B restrictions. A landlord will therefore not be able to withhold a part of or the whole deposit in respect of damage to plants and lawns, in such circumstances.

On the other hand, the tenant remains liable to maintain the garden in a neat and presentable condition, as far as this is required in the lease agreement. Within reason, it may even be required of a tenant to use grey water for watering the garden with a bucket or watering can. This may not be convenient, particularly if the tenant expected to have an irrigation system. Ideally a landlord and tenant should reach a separate agreement on this aspect, especially because landlords and tenants alike are uncertain of their obligations in the face of the unanticipated severity of the drought. There is, in any event, also some controversy about whether grey water is suitable for watering plants.

The questions we receive from clients show that there is also a lot of confusion in the rental market in those instances where tenants are liable to maintain a swimming pool on the leased premises. If the pool's water levels drop too much, the pool walls and structure risk being damaged. But to maintain pool water levels without a (generally costly) pool cover, is at present hardly possible and in any event not permitted.

There are various solutions that can work, but it is best that the landlord and tenant agree thereto in writing, to avoid later uncertainty and comebacks.

Contact Martin Sheard at STBB Claremont at mailto:martins@stbb.co.za or on http://www.stbb.co.za for assistance.