Leasing a property is something most of us will do at some point. And although it involves a legal contract, there’s no need to be scared of the implications. Magdel Louw explains
When renting a property, a ‘contract of lease’ is signed by both you – known as the ‘tenant’ – and the ‘landlord’, who’s usually the owner of the property. This gives you the right to use and live on the property in return for the payment of rent. While your lease agreement does not have to be in writing (a verbal agreement is also valid), it’s to your benefit to ask for the stipulations of the lease to be recorded in writing. If the landlord refuses to comply with this, he or she is committing a crime.
According to the Rhodes University Legal Aid Clinic, the most important points you and the landlord have to agree upon, and which will also be contained in the written lease agreement, are:
a) the address and a description of the property that’s leased to you;
b) the amount of rent that’s to be paid and when it is payable; and
c) the duration of the lease. If there is no fixed period, the notice period required to end the lease needs to be stipulated.
The most common practice is for rent to be paid on a monthly basis, and the notice period to end the lease is usually a calendar month.
The document must also contain the names and addresses of both tenant and landlord, the amount by which the rent may increase in the lease period, the amount of the deposit, as well as the duties of both tenant and landlord.
There are often other clauses in the lease too, delineating who will be responsible for the payment of electricity and water bills, and the maintenance of the garden, for example. If the landlord promises to fix or do something to the premises before you move in, record this in writing before you sign the lease.
Most of all, be sure you read the lease carefully and understand it – once signed, you’ve agreed to all its terms. If you have questions, ask. Insist on a copy of the agreement and keep it in a safe place.
Usually, a tenant pays a deposit to the landlord before moving into a property. The landlord is required by law to place the deposit into an interest-bearing account for the entire duration of the lease. This is used at the end of the lease period to cover any outstanding money owed by you, such as not paying your rent, or for repairs for damage that you may have caused.
So before you move in, both you and the landlord must inspect the premises together to agree on whether the property is defective or damaged. If there are problems, a list must be attached to the lease so you are not unfairly penalised when you leave.
Within three days before the end of a lease, you and the landlord must again inspect the premises together to see if any damage was caused to the property while you lived there. If you’ve caused any damage, the landlord is entitled to make use of your deposit to fix this. However, the landlord must keep the receipts or invoices for any repairs and you have the right to inspect these. The landlord may only deduct repairs expenses from the deposit once the repairs have been performed and the invoices have been supplied.
Any money remaining from the deposit and accrued interest must be returned to you within 14 days after you have left the premises. But if there is no money owed to the landlord and no damage to the property, the full deposit – as well as interest – should be returned to you within one week of the lease ending.
If the landlord has engaged the services of a rental agent, it is up to the agent to fulfil the landlord’s obligation in the points above.
It’s the landlord’s duty to make the property available to you on the agreed date, in the condition you agreed to and also to maintain it in that condition. The landlord also has to give you a receipt for all rent payments made.
In addition, the landlord may not disturb your use of the property – for example, they cannot enter the property or remove things without your permission.
The premises must also be fit for you to live in. Normally, a landlord will be responsible for maintaining the premises during the period of the lease. But check in your lease agreement for any clause making the maintenance of the property your responsibility.
Your most important duty is to pay the rent and pay it on time. It’s also your duty not to use the property for purposes not in the agreement. You have to take good care of it and return it to the landlord in the same condition it was in when you received it. Reasonable wear and tear is acceptable.
Course of action
If the landlord doesn’t stick to the lease agreement, deal with the matter in a friendly manner first. Talk to your landlord and ask them to sort out the issue.
If that doesn’t work, write a letter to them setting out your problem and give them the opportunity to resolve it within a specified number of days. Send the letter via registered post.
If there’s still no resolution, seek legal help. Depending on the situation, you may be entitled to cancel the contract of lease and vacate the property, demand that the landlord make repairs, claim a reduction in your rent or even sue your landlord for damages. No one may ever evict you without a court order. If your landlord applies for such an order, you will be given notice and you should retain legal assistance immediately.
Behaviour that can get you blacklisted
• Failing to pay the rent as agreed upon.
• Withholding rent to force the landlord to make repairs.
• Not paying the last month’s rent because you’re worried that you’ll lose the deposit.
This type of behaviour is damaging to tenants because it reflects negatively on their personal credit profile – and could lead to a blacklisting. A blacklisting makes applying for assisted finance (bonds, bank loans, vehicle finance) very difficult. If you are blacklisted with the credit bureau, there’s also a good chance no one will want to rent their property to you in the future.