The Rental Housing Amendment Act[1], section 4B (4) and (5) determines that the tenant and property owner must jointly, before the tenant moves into the dwelling, inspect the dwelling for any defect and damage. It further determines that the same procedure must be followed when the tenant vacates the property, and this inspection must be done at least three days before the tenant exits the property to ensure that any damage that was caused can be attributed to the tenant while still in possession of the property.
Failure by the property owner to inspect the property in the presence of the tenant will be deemed to mean that the property owner acknowledges that there is no damage to the property to be noted and that everything is in order.
The same situation in reverse is also applicable. If the tenant fails to respond to the property owner’s requests for inspection, the property owner must do an inspection within 7 (seven) days after the tenant vacated the property for the damage to be validly attributed to the tenant.
In the first instance, the property owner must refund the full deposit, plus interest, to the tenant. In the second instance, the property owner may deduct from the tenant’s deposit any reasonable cost for repairs. The balance of the deposit must be refunded to the tenant.
It is clear from the abovementioned Act that the property owner has a responsibility to do an entry and exit inspection, and it can have financial consequences for him if it is not done accordingly.
The next question that the client wanted clarity on was whether the rental agency can be held liable for the damage if inspections were not done by the rental agent before handing over the keys of the dwelling to the tenant.
The recently promulgated Property Practitioners Act[2] (“PPA”) refers to a Mandatory Disclosure Form. Section 67 directs that a property practitioner (which includes a rental agency) must not accept a mandate unless the property owner has provided the practitioner with a fully completed and signed Mandatory Disclosure Form in the prescribed format.
The property practitioner must provide a copy thereof to the prospective tenant and it must be annexed to the lease agreement. If it is not included in the lease agreement, there is deemed to be no defects to the property.
In section 67(3), the property practitioner may be held liable by an affected consumer if there are latent defects. The rental agency does not have to do the inspection themselves, as it still remains the responsibility of the property owner.
If the agency was instructed to do the inspection on behalf of the property owner and failed to do it, the property owner may hold the rental agency liable for damages, but liability will have to be determined by legal process.
Important to note is that the PPA also allows for the prospective tenant to undertake for his/her own account an inspection to ascertain the state of the property before entering into an agreement. This might be a useful undertaking by prospective tenants where the rental agency fails to comply with the above rules.
[1] Act 35 of 2014
[2] Act 22 of 2019
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)