Tenant Rights In South Africa
Renting a property gives a tenant the advantage of a wider choice, increased flexibility (in the likes of employment which means relocation) and often more suitable availability. There is also a lot less to concern themselves with compared to traditional property ownership holding costs and the rise and fall of the property market.
When it comes to letting a property – both the tenant and the landlord should always enter into any letting agreements openly and honestly and intending for each party to get proper value. Often it’s the approach which the parties adopt which will determine whether the relationship between the parties and the benefits they derive therefrom is mutually satisfactory.
Under “Common Law” a tenant is obligated to pay the landlord the correct amount of rent in the correct “currency” at the correct time and place as determined in the lease. A tenant must also take proper care of the house or property and may not utilise it for purposes other than for which it was rented to them. Tenants are also obliged to return it or restore it to the same condition or state in which they received it when the lease agreement ends.
As such, common law simply states that the “full” rental must be paid to the landlord at the proper time which is deemed to be that time and date which was agreed by both tenant and landlord and it doesn’t give the tenants a seven day “grace” period. A tenant should also have an inspection on moving in and moving out together with the landlord or their representative.
In terms of the Rental Housing Act it should be noted that a tenant also has to ensure they tender prompt as well as regular payment of the rental and any other charges/fees which may be payable in terms of the lease agreement.
Tenants must also tender payment of a “deposit” which sum must be agreed upon between the parties up front.
In most cases a landlords will seek an up-front deposit to cover their costs in the event of damages to the property.
This deposit could be the equivalent of one or two months rental, dependent on various issues which could include the tenants' credit profile/rating, property in questions value and the condition of the property itself.
In terms of the rights around deposits that a tenant has, if the property landlord is holding the deposit the deposit paid on the property needs to be refunded - with interest. The landlord is not able to utilise the deposit to improve/upgrade the property upon the tenant vacating it. The deposit must be held in trust in the event that there are damages. It’s important to note that a tenant cannot request that the landlord utilises this deposit as rent during the lease and most particularly not in the last month/s of the lease agreement.
When it comes to refunding deposits, the parties (ie landlord and tenant) need to undertake a joint inspection – when the tenant comes in and when they leave. The moving in inspection is to note the condition of the property at the time the tenant takes occupation of the property and an outgoing inspection will be done to check if there was any damage the tenant has caused.
The deposit can be applied by the landlord against any monies the tenant may still owe in terms of the lease agreement. These could include the likes of any rentals monies outstanding, electric/water/gas, damage to the property or lost keys/remotes and the likes which were present at the time the property was let.
Once the departure inspection has been handled and if it’s agreed that there aren’t any damages, then the deposit must be refunded to the tenant within a seven day period. Again – note that any deposit can still be applied to any monies the tenant may still owe the landlord in terms of the lease for the likes of lights and water or rental. Bear in mind that because the landlord in most instances only receives the last lights and water bills a month in arrears that a deposit account in most instances can only be reconciled at that time.
If the final inspection shows that the tenant has damaged the property then the deposit needs to be refunded within fourteen days after the property has been restored to its original condition (i.e. as when the tenant moved in). If it’s the case that a tenant doesn’t attend the outgoing inspection, the landlord must refund the deposit with 21 days of termination of the lease.
The Letting or Lease Agreement
Whilst technically not obligatory – ensure a written lease agreement is drafted and signed – it will save grief later on. A good lease will clearly set out the parties rights as well as the legal obligations of both tenant and landlord. Take care to read through the agreement beforehand and ensure that you understand the provisions and the responsibilities that are covered in the agreement. Any lease agreement needs to be compliant with the Rental Housing Act.
Both parties have to agree on what the rental is as well as any other additional charges. Parties also need to ensure they know when, how and where the rental payments need to be made. Another important issue is to understand exactly what is being let – an accurate description of the property being let is vital to avoid misunderstanding.
The tenant should be aware that the rental is normally made up of a fixed rental amount together with other tied costs which could include the likes of water, electricity, gas, parking, Satellite TV and others.
A Tenant has the right to receive a receipt for any and all payments that they have tendered to the landlord as well as an invoice which provides an easily understandable breakdown of the costs themselves and what they are for.
Tenants have a legal obligation to tender the full amount of rent as well as ancillary fees/charges such as utilities on the date they are due and pay these to the account specified by the landlord. Utilities are payable over & above the rental fee. It’s important that both parties agree in advance as to exactly which charges a tenant is expected to pay for. These could include the likes of parking, water, electricity, gas, refuse removal and sewerage.
A tenant is within their rights to check the landlords’ municipal account or statement to see which charges or fees have been allocated to his/her/their bill.
Tenants are expected to utilise the likes of water, gas and power responsibly – many of todays’ properties that are let come with the likes of pre-paid meters to mitigate risk and to allow the tenant to better manage the likes of electricity usage.
Tenants should also note that if the lease provides, a landlord does have the right to pass any increases they may incur when the likes of rates or levies (in a complex as an example) are raised.
The early termination of a lease agreement
In most cases lease agreements are drafted for a set period – in many cases one year. It is possible for a tenant to cancel a lease however before the end of the set period by providing the landlord with twenty (business) days of notice.
The tenant should note that under the CPA (Consumer Protection Act) they will held liable for a “reasonable penalty” for the early cancellation although this does not mean that the landlord can penalise the tenant but allows for them to recoup some losses they may suffer due to the early cancellation of the agreement and the tenant leaving before its expiration.
Whilst the Act is vague and doesn’t define what a reasonable penalty is as such, these costs could include the likes of a credit check for a new tenant, advertising costs as well as rentals lost during the period the property stands empty – but is has to be based on the landlords actual damages.
Maintaining the rental property
When it comes to maintenance is remains the tenants’ responsibility for keeping it in the same condition as what it was when they rented the property - taking the likes of normal and fair wear and tear into account. A landlord is responsible to keep the property in an appropriate condition for the purposes which it was let to the tenant for and comply according to all health, safety and local law regulations.
When repairs are needed the landlord should attend to same within thirty days of being advised that they are needed – unless the parties agree otherwise. In certain cases where the tenant is inconvenienced by the repairs, the tenant should be given a remission in rental as compensation.
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Author: Barry Davies