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June 19, 2016

Residential leases: what are your rights as a landlord or tenant?



The relationship between a landlord and tenant is governed by the Rental Housing Act, 1999 (Act No. 50 of 1999), which provides that:
  1. A lease need not be in writing unless a tenant insists. A written lease must contain the following terms: 
·         the names of the tenant and the landlord and their addresses in the Republic for purposes of formal communication;
·         the description of the dwelling which is the subject of the lease;
·         the amount of rental of the dwelling and reasonable escalation, if any, to be paid in terms of the lease;
·         if rentals are not paid on a monthly basis, then the frequency of rental payments;
·         the amount of the deposit, if any;
·         the lease period, or, if there is no lease period determined, the notice period requested for termination of the lease;
·         obligations of the tenant and the landlord;
·         the amount of the rental, and any other charges payable in addition to the rental in respect of the property.
  1. If appropriate (e.g. the tenant occupies a unit in a sectional title scheme) a copy of any House Rules applicable to a dwelling must be attached as an annexure to the lease.
  2. The landlord must furnish the tenant with a written receipt for all payments received by the landlord from the tenant.
  3. The landlord may require a tenant, before moving into the dwelling, to pay a deposit.
  4. The landlord must invest the deposit in an interest-bearing account with a bank (at a rate not be less than the rate applicable to a savings account with that bank).
  5. The tenant may, during the period of the lease, request the landlord to provide him or her with written proof in respect of interest accrued on such deposit, and the landlord must provide such proof on request.
  6. Before the tenant moves into the dwelling, the tenant and the landlord must jointly inspect the dwelling to ascertain the existence or not of any defects or damage therein with a view to determining the landlord’s responsibility for rectifying any defects or damage or with a view to registering such defects or damage.
  7. A list of any defects must be attached as an annexure to the lease.
  8. At the expiration of the lease the landlord and tenant must arrange a joint inspection of the dwelling at a mutually convenient time to take place within a period of three days prior to such expiration with a view to ascertaining if there was any damage caused to the dwelling during the tenant’s occupation thereof.
  9. On the expiration of the lease, the landlord may apply such deposit and interest towards the payment of all amounts for which the tenant is liable under the said lease, including the reasonable cost of repairing damage to the dwelling during the lease period and the cost of replacing lost keys and the balance of the deposit and interest, if any, must then be refunded to the tenant by the landlord not later than 14 days of restoration of the dwelling to the landlord.
  10. The relevant invoices which indicate the costs which the landlord incurred must be available to the tenant for inspection as proof of such costs incurred by the landlord.
  11. Should no amounts be due and owing to the landlord in terms of the lease, the deposit, together with the accrued interest in respect thereof, must be refunded by the landlord to the tenant, without any deduction or set-off, within seven days of expiration of the lease.
  12. Failure by the landlord to inspect the dwelling in the presence of the tenant is deemed to be an acknowledgement by him that the dwelling is in a good and proper state of repair, and the landlord will have no further claim against the tenant who must then be refunded the full deposit plus interest by the landlord.
  13. Should the tenant fail to respond to the landlord’s request for an inspection, the landlord must, on expiration of the lease, inspect the dwelling within seven days from such expiration in order to assess any damages or loss which occurred during the tenancy.
  14. The landlord may in these circumstances, without detracting from any other right or remedy of the landlord, deduct from the tenant’s deposit and interest the reasonable cost of repairing damage to the dwelling and the cost of replacing lost keys.
  15. The balance of the deposit and interest, if any, after deduction of the amounts contemplated above, must be refunded to the tenant by the landlord not later than 21 days after expiration of the lease. 
  16. Should the tenant vacate the dwelling before expiration of the lease, without notice to the landlord, the lease is deemed to have expired on the date that the landlord established that the tenant had vacated the dwelling but in such event the landlord retains all his or her rights arising from the tenant’s breach of the lease.  
  17. If on the expiration of the lease the tenant remains in the dwelling with the express or tacit consent of the landlord, the parties are deemed, in the absence of a further written lease, to have entered into a periodic lease (one for an undetermined period, subject to notice of termination by either party) on the same terms and conditions as the expired lease, except that at least one month’s written notice must be given of the intention by either party to terminate the lease.


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