Landlord and tenant inspections
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)
The tenant-landlord relationship
The relationship between landlord and tenant is a symbiotic one, where the efforts of either party results in the best outcome for both parties. During the lockdown, this two-way relationship between many tenants and landlords has been threatened. The biggest contributor to this is quite simple: a lack of information. Paying your dues One of the biggest impacts the lockdown has had on tenants is through affected income. Unfortunately, tenants are still required to pay the full rental amount if they are still able to occupy the property, regardless of how their income has been affected. Where income has been affected, tenants should discuss the possibility of a reduced rent directly with their landlords. Landlords, however, also rely on rental income and cannot always afford to lower rental amounts. When this is the case, tenants can, technically, apply to the Rental Housing Tribunal to request a reduction in rent, but due to new cases not being heard at the moment, such a request is unlikely to be successful. The best option is for tenants to apply for State assistance, and so ensuring the least impact on both parties. With these types of requests, it is important to note that landlords will have to be furnished with relevant personal information of the tenant to corroborate a tenant’s inability to pay their rent. The landlord will, however, be responsible for guarding the privacy of their tenant’s personal information in such a case. Sticking to the rules Even when the relationship is no longer a beneficial one, and becomes filled with strife, landlords may not terminate a lease or refuse services to tenants and may not insist on conducting an investigation of the property without the tenant’s express permission. Similarly, tenants may not cancel their leases during this time either. Such “threatening” actions are highly discouraged while the country is in any level of the lockdown. As before, a tenant’s deposit may not legally be used to cover rental arrears, but only for its intended post-rental purposes. Deposits, along with the accrued interest, must be refunded to the tenants upon their exit, where only the necessary cost of repairs may be deducted. Landlords are also still responsible for the maintenance of their properties, and for ensuring liveable conditions for their tenants. During any maintenance procedures landlords and workmen are obliged to adhere to social distancing and must follow adequate sanitising methods throughout. The landlord must also provide the necessary clothing and equipment for the procedures to be completed themselves. End of lease But while tenants may not be evicted and leases may not be terminated, the reality is that leases do come to an end. As far as possible, tenants and landlords are encouraged to continue their relationship, even if just on a month-to-month basis until moving house can be done without safety hazard. Where the continuance of a lease is not possible, tenants should obtain a permit from the SAPS allowing them to move freely during their relocation, and follow strict safety measures throughout the process. 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)
Awaiting your deposit
What to know when your landlord has your deposit and has failed to pay it out You have viewed the new property and secured it by paying the correct deposit amount to the landlord. With the transition into your new space being as breezy as it was, no red flags were raised as to how your landlord could trick you going forward. How do you approach a situation where your landlord won’t pay you back your deposit after you move out? Firstly, a pre- and post-occupation inspection of the rental space must be completed before and after the tenant moves in. This inspection is the landlord’s responsibility and if he or she does not conduct the said inspection, they are then unable to claim against the tenant upon the lease expiration. The Rental Housing Act states that the tenant has the right not to have their home or property searched by the landlord, and thus, the landlord must give reasonable notice for inspection 3 days before the lease ends. Regarding deposits, section 5 of the RHA states that, should there be damages incurred by the tenant under the said lease needing repair after the post-occupation inspection, the landlord must refund the remaining deposit amount, if any, to the tenant within 14 days. In the case where no claims for damages have been made by the landlord, and the tenant is debt free in terms of charges and rent, the deposit must be refunded within seven days following the lease expiration. A tenant who refuses to take part in the inspection process, and damages have been found, is liable to receive their remaining deposit 21 days from the expiration of the lease. If a landlord refuses or has failed to refund the tenant their deposit, the tenant may approach the Rental Housing Tribunal. References Rental Housing Act No. 50 of 1999. (2017). [PDF] Cape Town: Republic of South Africa, pp.6-7. Available at: https://www.gov.za/sites/www.gov.za/files/a50-99.pdf [Accessed 20 Nov. 2017]. 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)