For many young professionals, renting a house or an apartment is one of the first big steps in their lives. Of course, it can be a lengthy and complicated process: from searching for and viewing properties, to signing lease agreements and other documents. It’s always best to conduct thorough research and ensure all the legal boxes are ticked.
Good news for prospective tenants is that the law protects their rights in the form of The Rental Housing Act, which regulates the relationship between landlords (people who own property) and their tenants (people who rent property). The law also gives tenants a place to turn to, if they are mistreated by their landlords, known as the Rental Housing Tribunal.
In this basic guide, we take a closer a look at some of the most important aspects tenants need to bear in mind when renting a home in South Africa.
Ask for a Lease Agreement in Writing.
While verbal agreements are legally binding, it’s always best to obtain a lease agreement in writing, which is then signed by everyone involved. It is recommended to ask for a written agreement that clearly sets out all the terms and conditions as well as the rights and responsibilities of the tenant and the landlord. Things that have to be agreed on include what property will be rented, the rent amount, additional charges, increases, payment dates, the manner of payment, etc.
The law says that if a tenant requests a written lease, the landlord must provide one. A rental contract usually contains standard clauses, and while the law does protect the tenant from unfair or illegal conditions in the agreement, it’s smart to read the document thoroughly before signing.
You can download a free lease agreement here.
You’ll probably have to pay a deposit.
If you have rented a home before, you know that you’ll probably be asked to pay a deposit of 1 to 2 months of rent before moving into the property. The deposit covers the landlord for the repairs that are necessary to fix damage to the property when the tenant moves out. Repair costs are then deducted from the deposit and the balance paid back to the tenant within 14 days of repair. If the tenant doesn’t attend the outgoing inspection, the balance only has to be paid back within 21 days.
Keep in mind that the landlord is required to keep the deposit in an interest-bearing account for the duration of the lease. When the agreement comes to an end, and the tenant hasn’t caused any damage, the landlord must pay back the deposit (in full with the accrued interest) within 7 days of the lease agreement ending.
Remember to inspect the property before moving in and when moving out.
Doing an incoming and outgoing inspection of the property is very important! Aside from being a legal requirement, it is a good idea to create a record of any existing damage to the property before moving in, and a record of new defects when moving out.
Both inspections must be carried out together by the landlord and the tenant so that everyone is on the same page. If the tenant doesn’t show up for either inspection appointment, he or she cant challenge the repair costs that will be deducted from the deposit when moving out. If the landlord is a no-show, he or she can’t claim repairs and deduct the cost from the deposit.
It’s essential to walk through the property and document every flaw using a checklist and by taking pictures. The document must be signed by the landlord and the tenant.
Know what maintenance is your responsibility.
Tenants usually want a neat property to live in, while landlords wish their property to be well looked after. When it comes to maintenance and repairs, it is important to know who is responsible. The landlord must ensure that the property is safe and habitable. If a tenant informs the landlord that maintenance repairs are necessary, the repairs must be done within 14 days of being asked unless otherwise agreed with the tenant.
As a rule of thumb, the landlord is responsible for fair wear and tear as well as maintenance of structural fixtures and fittings such as fixing roof leaks, replacing a geyser, or fixing plumbing and electrical problems. Of course, that’s to say, if the damage wasn’t deliberately or negligently caused by the tenant, in which case it is the tenant’s responsibility.
The tenant, on the other hand, is responsible for keeping the property clean, tidy and safe and must reasonably use electric and plumbing systems. The tenant is usually responsible for normal wear and will need to replace light globes, taps, locks, handles, broken windows, and maintain the garden.
You Can’t Withhold Rent if you are Unhappy
If the landlord doesn’t play fair and isn’t sticking to the agreed terms and conditions, withholding rent might seem like the only option and perhaps even fair. But, sometimes tenants use this as an excuse because they can’t pay their monthly rent. Even if the landlord is in the wrong and the tenant can’t make the most of living in the property, withholding rent can be seen as a breach of contract and isn’t usually the best way to resolve a dispute.
If the landlord isn’t maintaining the property, for example, it’s better to start off pointing out the obligation to the landlord and insisting on repairs in writing. If the landlord ignores the tenant, the tenant can approach the Rental Housing Tribunal or a court to resolve the dispute. Depending on the specific circumstances, the tenant can possibly cancel the contract, claim damages, or even do the necessary maintenance and deduct a reasonable amount from the rent.
Early Cancellation depends on the Contract
A rental agreement is usually for a fixed period (for example 24 months), but the contract can be cancelled before the end date of the agreement. If a tenant wants to end a lease early, he or she can only do so if the landlord rents out the property in the ordinary course of its business (as the Consumer Protection Act (CPA) applies) or if the contract has a clause that allows explicitly for early cancellation. If the CPA applies, at least 20 business days’ notice is required, and the tenant will have to pay a reasonable penalty, as well any outstanding rent and utilities. Keep in mind that this can’t be deducted from the deposit kept by the landlord.
If the cancellation is based on the breach, the tenant must usually give the landlord an opportunity to fix the situation within a specific period, and if he or she still doesn’t comply, can proceed to cancel the agreement. The landlord can also cancel the agreement if the tenant is in breach.
Approach the Rental Housing Tribunal to Resolve Disputes
The first plan of action should be approaching the landlord and putting the complaint in writing. If the landlord ignores the complaint or doesn’t resolve the issue to the tenant’s satisfaction, the tenant can approach the Rental Housing Tribunal. The Tribunal resolves complaints through processes such as mediation and arbitration; and offers advice on issues related to residential leases and rentals. Not only does the Tribunal have the power to summon both the tenant and landlord to a hearing, but its rulings also have the same effect as that made by a Magistrates Court.
We’ve Got Your Back!
There are many legal ins and outs of renting a home in South Africa, so having access to a lawyer to answer any questions you may have, or to guide you through a dispute can give you extra peace of mind. Be sure to look at LAW FOR ALL’s policy options for more information.