What You Need To Know About Residential Lease Agreements In South Africa
Navigating the world of residential lease agreements in South Africa can be complex and fraught with potential pitfalls. In South Africa, these agreements are an essential tool for establishing clear expectations and protecting the interests of both landlords and tenants.
Whether you are a seasoned property manager, a first-time landlord, or a prospective tenant, understanding the nuances of these contracts can be critical to ensuring a positive leasing experience.
1. Responsibilities Of Each Party
Lease agreements, contrary to the perception of some, are not just a bureaucratic formality. They are a necessity that provides certainty by explicitly outlining the responsibilities of all involved parties. A well-drafted lease agreement reduces the likelihood of disputes arising and provides a solid foundation for resolving them if they do.
Without a written agreement, any disagreement could become a "he-said-she-said" scenario, making it challenging to establish the truth of the matter.
2. Contract Breaches & Eviction Process
A common question often asked by landlords is: "What happens if my tenants stop paying rent? Can I evict them?" The answer, typically, should be found within the lease agreement itself, which usually outlines the procedures for dealing with such breaches of contract. However, in the absence of a written agreement, landlords can resort to the Rental Housing Act (RHA), which stipulates giving tenants a 30-day notice to vacate the premises.
It is also important to note that landlords do not have the right to disconnect municipal services due to late or missed payments by the tenant. Such actions are considered illegal, and tenants have the right to institute legal proceedings to restore access to these services. A fundamental principle in issue here is that nobody may take the law into their own hands - so a landlord may not disconnect water and electricity without the intervention of a court. To preserve order and peace in society the court will summarily grant a spoliation order for restoration of the status quo where such deprivation has occurred, and it will do so without going into the merits of the dispute. The result - the landlord will be ordered to restore electricity and water immediately to the tenant and will also have to pay the tenant's legal costs.
For landlords dealing with the scenario of squatters, it is important to follow due process as outlined in the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998. It's illegal to hire a security company, change the locks, or restrict access to municipal services to evict these occupants. Instead, a court order must be obtained.
3. Sale Of Rental Or Tenanted Property - Notice Periods For Tenants
Although a landlord is entitled to sell their property at any time, that sale does not automatically nullify the rights and obligations of a tenant. The South African legal principle "huur gaat voor koop" determines that a lease agreement remains valid even if the property is sold. There are laws and processes in place designed to treat all parties as fairly as possible; the landlord must give at least 20 days' notice of their intention to sell the property or as much notice as agreed to in the signed lease.
As a tenant, you are only required to leave the property once your lease agreement expires, and the purchaser may only take occupancy once you have moved out - unless the landlords included a sales provision in the lease to give themselves and their tenants more flexibility in the event of a sale. The terms could allow the tenant or landlord to cancel the lease early, with a prescribed notice period, if the property is placed on the market. As long as both parties have agreed to the terms, they replace the 'huur gaat voort koop' principle.
Without a sales provision in your lease, cancelling your contract early can be tricky. A tenant may be able to do so if their contract falls under the Consumer Protection Act (CPA), but this only occurs if the agreement is between two or more natural persons, or natural persons and a juristic person (a company, trust, body corporate, partnership, or association). Any agreement between two or more juristic persons is not covered by the CPA.
Incoming and outgoing rental inspections are required by law under the RHA. In the event of damage to a rental property, the process of recovery and repair can be made smoother by a well-executed lease agreement. It is crucial to conduct entry and exit inspections, with both the landlord and tenant present.
4.1 Entry or Ingoing Inspection: It forms the foundation of the contractual relationship between the tenant, owner (landlord) and the rental agent - bringing trust to the agreement and effectively laying down rules and expectations for the rental period. This allows for a clear record of the property's condition at the start - with which it can be compared at the end of the lease, ensuring fair treatment for everyone at the end of the day.
Tenants who do not attend the entry inspection, forfeit their right to contest repair costs deducted from their deposit when they move out. Should the owner or rental agent not show up for the entry inspection, they forfeit their right to claim for future repairs.
CCH uses use an online and detailed checklist that itemises all building elements and inventory from floor to ceiling, room by room. Every flaw needs to be documented in writing and photographed, together with general pictures of the property's overall condition. The resulting online "document" is then signed by the tenant and agent, and a copy is always available online (on the rental App) to everyone involved.
A tenant is granted a minimum of seven days from the occupation date to submit a snag list, providing a comprehensive overview of any existing issues. An entry inspection report at the commencement of the lease serves purely to record the state of repair of the premises. Some tenants see these minor faults as 'snag list' of repairs to be done - this is generally not the case unless there is damage which does need repair as it affects the tenant's use and enjoyment of a property.
4.2 Exit or Outgoing Inspection: On termination of the Lease Agreement, the vacating tenant is required to return the property in the same condition, fair wear and tear excepted.
According to the RHA the outgoing inspection must be conducted and signed by both the parties, agent/owner and tenant, within 3 days of expiry of lease (or as per lease agreement). The inspection is to compare the current condition with that recorded on the signed ingoing inspection report and to record any further damage - excluding "fair wear and tear", being damage or loss to an item which happens because of ordinary use and exposure over time.
The outgoing inspection must be signed by the legal tenant (the tenant who signed the lease), not just an occupant, unless the occupant has written permission from the tenant to do so.
4.3. What is "Fair Wear & Tear"?
"Fair wear and tear" are the damage that happens through ordinary day-to-day use of the property by the tenant. If the landlord wants to claim for damage to the property, the landlord will have to show that this damage to the property is beyond what is "fair wear and tear".
The most common examples of "fair wear and tear" may include the following:
- Faded paint or wallpaper due to sunlight.
- Faded curtains.
- Carpet wear caused by normal use.
- Furniture marks on carpets.
- Warped windows caused by rain or sunshine.
- Warped doors caused by age, temperature, or moisture.
- Broken appliances (not caused by misuse).
- Dirty grout.
- Loose handles or doors on kitchen or bathroom cabinets.
- Blown light bulbs.
5. Landlord & Tenant Responsibilities for Maintenance and Repairs
The RHA specifies that the tenant must maintain the property in a clean, tidy and safe state of repair and requires the tenant to use all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances in a reasonable manner - refraining from intentionally or negligently damaging the property itself or the items in the property.
5.1 Tenant Maintenance Responsibilities:
- Tenants are responsible for replacing items that have a short life such as light bulbs, stove fuses (unless due to problems with the electrical system) and tap washers.
- Blocked drains - if due to the tenant's usage, e.g. due to food, leaves and hair, then it is for the tenant's costs. Blockage due to roots of trees will be for the owner's cost.
- Tenants need to keep the pool clean. Structural problems need to be reported by tenant top the owner.
- Cleaning gutters of leaves and obstructions.
- General maintenance of the garden is tenant's responsibilities - i.e., moving lawns, trimming bushes and watering plants - unless otherwise agreed upon in lease.
- Mould due to improper ventilation and moisture is for the tenant to sort out - unless it is due to e.g., a leak in the roof above and the moist "originates" from a neighbouring property.
Tenants are obliged to report any damage, failing which they could find themselves held liable for any further damage due to lack of timeous attention to the initial problem - and tenants are obliged to provide access for contractors to effect repairs, not the estate agent as some tenants fondly think.
5.2 Owner / Landlord Maintenance Responsibilities:
Where there is no written lease agreement setting out the specific obligations of maintenance, under common law and legislation, it is the landlord's obligation to place the dwelling in a condition reasonably fit for the purpose for which it is to be let. In other words, the dwelling must be in "a good state of repair" so that the tenant is able to have undisturbed use and enjoyment of the property. The landlord is also obliged to maintain the dwelling and carry out repairs during the entire lease period - always maintaining the property structurally, internally, and externally.
The landlord must ensure the following is in good and safe working order - electricity supply, plumbing system, heating, ventilation, and working and unbroken door fixtures and windows. Auto gates, locks, fixtures and fittings and anything provided for the use of the tenant are generally the responsibility of the owner to repair - unless agreed otherwise in your lease agreement.
Other items the owner need to maintain, includes:
- Major garden projects - tree felling and insect and vermin eradication - unless the tenant has caused it.
- Cleaning fireplace chimneys at appropriate intervals.
- Painting chipped (skirtings) or faded areas of the property.
- Security system - including electrical fence, beams, and the alarm pads.
- Ensuring that the pool works correctly.
- Damp due to a water leak from e.g., the roof, is for the owner to fix.
- Appliances provided by the owner - unless the damage was caused by the tenant's negligence.
6. Dispute Resolution
But what happens when disputes arise that can't be resolved amicably? Thankfully, there are avenues for resolution. Claims can be brought to the magistrate's court in the district where the agreement was signed or where the person defending the action resides. Alternatively, the Rental Housing Tribunal can be engaged, which does not require legal representation and can be a cost-effective solution.
The world of lease agreements may seem daunting, but it does not have to be. With a well-drafted agreement and a good understanding of your rights and responsibilities as either a landlord or a tenant, the leasing process can be a smooth and positive experience. Do not take a chance on a handshake agreement when you can have the security of a professionally drafted lease agreement at your disposal.
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 adviser for specific and detailed advice. Errors and omissions excepted (E&OE)