Frequently Asked Questions
Whether you are a first time tenant or seasoned landlord, we take a look at what you need to know about property rentals in South Africa with Hypo Real Estate’s regularly updated frequently asked questions section.
RENTALS
Do I have to sign a written lease?
A verbal agreement is as binding as a written lease, however a written lease is much more preferred in order to protect both tenant and landlord. Your agreement should set out in writing the terms and conditions agreed upon. This will go a long way to preventing later disputes, and to avoid hearsay situations.
What information should be in a lease?
A lease should have all the following information
- Landlord’s name
- The tenant’s name
- Landlords postal address
- Tenant’s postal address
- The address of the property being leased
- The amount for which the landlord will rent it out
- The amount by which the rent will increase (for example, by 10 percent when renewing the lease)
- When the rent will increase (for example, if there is a rate increase)
- How often rent is to be paid, (for example, monthly)
- The amount of the deposit, if any
- The landlord’s and tenant’s obligations (for example, who is responsible for maintenance? Who will pay the water, electricity and rates bills? Usually, the tenant pays for charges related to consumption, such as water and electricity, and the landlord pays for charges related to the property, such as rates.)
- The conditions under which either you or your tenant can give notice to cancel the contract
- The House rules, signed by both parties, should be attached to the lease.
- A list of defects drawn up during a joint inspection when the tenant moves in. This should be signed by both the landlord and tenant and attached to the lease.
Should I ask for a deposit?
Yes, it’s a good idea to put it in the lease. Remember that the deposit must be put in an interest-bearing account for the duration of the lease and given back to your tenant, plus the interest it has earned, when the tenant moves out.
If, however, your tenant still owes you money on moving out, or if the property has been damaged beyond normal wear and tear, you can use the deposit to pay for repairs or to cover the money owed to you.
It is common for the landlord to require one month’s rent or a double deposit (2 month’s rent). The landlord could even require a triple deposit if the tenant’s credit report is considered risky.
However once the amount of the deposit has been agreed, the landlord cannot demand a bigger deposit during the term of the lease – unless the tenant agrees, or the lease agreement makes provision for a top-up when the rent increases
Practically, the landlord should not hand over the keys to the property until the agreed deposit and first month’s rent has been paid (and cleared in the case of a cheque).
In terms of the Rental Housing Act, if the landlord holds the deposit, he / she must invest the deposit in an interest-bearing account with a minimum rate of interest applicable to a savings account. The landlord cannot contract out of this legal obligation.
Tenants are entitled to request written proof of the interest earned and if requested, the landlord is obliged to provide such proof.
If the deposit is held by the estate agent, this is regulated by the Estate Agents Affairs Act – read your lease agreement – some lease agreements provide that no interest is paid to the tenant and in this case, the estate agent does not need to refund the deposit with interest.
Can I increase the rent in the middle of the lease period?
Not unless your lease agreement specifically says you can. If you want, you can add a clause to the initial agreement listing specific reasons that would allow you to increase the rent (for example, if the rates increase).
Can I evict my tenant?
You can never evict a tenant yourself. You can only seek a court order to evict a tenant if your tenant is in breach of contract.
To find out if your tenant is in breach of contract, check your agreement. There should be a clause saying what constitutes a breach of contract and what your rights would be in such a case.
If your tenant is indeed in breach of contract, take steps to strongly urge your tenant to rectify the breach. If this does not work, take legal action – lodge a complaint with the Rental Housing Tribunal or seek the help of a competent attorney.
Can I enter the property without my tenant’s permission?
You have a right to enter the property to perform routine inspections and so on, but only after arranging with your tenant to do so at a reasonable time, and with reasonable notice. Your tenant does not have the right to deny you reasonable access.
What can I do if my tenant damaged the property?
If you asked for a deposit, you can use the money to repair damages attributed to the tenant beyond normal wear and tear when the tenant moves out. Be sure to follow these steps:
- When your tenant moves in, inspect the property together and list, in writing, any existing defects – both should sign this and it must be attached to the lease agreement.
- When your tenant moves out, inspect the property together again, ideally no earlier than three days before the tenant moves out.
- Compare the new list of defects with the list you made earlier.
- You may give the tenant a chance to do the repairs personally, or you can agree that you will do it. Hold on to receipts for repairs paid for out of the deposit. Your former tenant has a right to see them.
If repairs cost less than the deposit plus the interest accrued, you will have to reimburse your former tenant with the difference.
- Contact the Rental Housing Tribunal if you have problems.
To what extent should a landlord maintain a property?
Common law states the landlord must hand over and maintain the property fit for the purpose for which it was let.
However many lease agreements deal with maintenance of the property differently. It is advisable to ensure you have read the “Maintenance” clause of the lease agreement carefully to ensure you are aware of your obligations and the landlord’s obligations.
Most lease agreements provide that the landlord is responsible to maintain the structure of the property and any electrical, plumbing or electrical apparatus which you have not damaged.
Generally the tenant is responsible to maintain the inside of the property “fair wear and tear” excluded. If the property has a garden or pool, it is common that the tenant is responsible to maintain the up keep of the garden or pool. Remember – it is important to refer to your written lease agreement.
The landlord does not have an obligation to fix every item the tenant deems necessary. Items which render the property unfit for the purpose for which they were let, such as no water / electricity, a burst geyser, non-working oven etc. would need to be attended to by the landlord. However the landlord would not be obligated to fix items such as missing internal keys, blown light bulbs and squeaky doors.
Again, it is important to point out that many lease agreements provide for different obligations pertaining to maintenance – read your specific lease agreement to confirm your responsibilities and the landlord’s.
Can I withhold the rent if the landlord doesn’t maintain the property?
The maintenance in question must be a material breach by the landlord such as no water / electricity, a burst geyser or non-working oven. A material breach does not include missing internal keys, blown light bulbs etc.
If the landlord fails to remedy a material breach you should cancel the lease and vacate the property or take legal action.
If you withhold rent, you yourself are committing a material breach and the landlord can take the necessary action to collect the rent – cancellation of the lease, court order eviction or blacklisting on credit bureau.
What happens when your lease agreement ends?
Your lease agreement is coming to an end and it’s time to decide whether to sign on for another year, to stay on a month-to-month basis, or to move on and terminate your lease agreement. Natasha Wright, of Pam Golding Properties’ rental division, explains the timeline of events when a lease agreement expires.
The Consumer Protection Act (CPA) requires the Landlord to give the Tenant written notice of not less than 40 days and not more than 80 days before the lease expires, to decide whether they are going to renew their lease agreement or not. Any new terms and/or material changes to the lease agreement such as the rental increase and extended lease period, must be included in the notice. There is usually also an administrative fee associated with the lease renewal and an increase in the deposit amount.
Most lease agreements will include a clause, specifying how much notice you are required to give if you are going to extend your lease, or terminate your contract. This is usually 30 days.
Exit inspections – last month of lease
Now is the time to do an exit inspection with your landlord or agent, to discuss any repairs or cleaning that needs to be done. Remember, it is mandatory for you and the landlord to inspect the property before occupation as well, to determine whether there are any defects or whether repairs are needed. This protects you, as the tenant, from being liable for any repairs that need to be done when you move out. They also give the landlord recourse if the property is not in the same condition as it was when you took occupation.
It gives you and the landlord an opportunity document any structural damage or defects during the in-going inspection by taking photographs and including these with a written list of concerns which must be attached to the lease agreement. You can then refer to this list when you and the landlord conduct your outgoing inspection, usually within three days before the expiration of your lease.
If the inspection does reveal any damage, other than day-to-day wear and tear, you as the tenant are required to pay for these repairs, and the landlord is entitled to deduct the cost from your deposit and accrued interest. Your lease agreement stipulates that you are to return the property in an acceptable condition.
Two weeks after the lease has expired
If repairs are not needed, and there are no outstanding amounts owed to the landlord or agent, you should receive your full deposit and interest accrued during the lease period, within seven days.
Note that if there was no joint in-going inspection, the landlord has no further claim against you if there is any damage when you move out.
If repair work needs to be done, the landlord will refund the balance of your deposit within 14 days. Your landlord must also provide receipts of all the repairs done, as proof of the costs incurred.
Disputes related to claims against your deposit, assuming that there was a joint in-going and outgoing inspection, can be referred to your regional Rental Housing Tribunal.