Know your rights and obligations as a tenant

Why Rent Property in South Africa?

The stigma that you’re paying someone else passive income when renting isn’t necessarily all bad. As a tenant, you don’t have to worry about levies, rates and many other pressures that a landlord faces.

Quite often, it is cheaper to rent a property than buy a primary residence and can allow you to save for a deposit while living an everyday life. But as a tenant, you have obligations and responsibilities under common and statutory law. You also have rights. Let’s discuss this below.

The Lease Agreement and Your Rights/Obligations as a Tenant

The lease agreement serves as a crucial document that outlines your rights and obligations as a tenant. It is essential to read and understand the lease thoroughly before signing it. It should include details such as fees payable (rent and utilities), responsibilities (upkeep of the garden or pool) and house rules or expectations such as pet friendliness and noise. You might get a copy of the house rules if renting in a sectional title scheme.

This legally binding contract will also give you a glimpse into your rights as a tenant. For example, you will get full access to the property, and the landlord may not barge in and invade your space during the lease agreement without permission/notice.

Remember that lease agreements are negotiable. You don’t have to accept any agreement with which you’re not comfortable with.

Tenant’s Obligations under Non-Statutory Law (Common Law)

Common law principles in the context of tenants’ obligations outline the standard expectations and duties that tenants should fulfil during their tenancy. Many of these will be specified in the rental agreement. Here are a few tenant obligations:

• Pay rent punctually: Tenants are obligated to pay the agreed-upon rent promptly, at the time and date specified in the lease agreement. It is their responsibility to make sure the full rent is paid without any delay or default.
• Property purpose: Tenants must use the property for the purposes it was let for. For example, a tenant cannot start a retail shop in a sectional title residential unit that they’re renting.
• No illegal activities: Tenants are not engaged in any activities that could cause damage or violate the terms of the lease.
• Taking care of the property: Tenants are required to take good care of the property during their tenancy.
• Wear and tear: The property needs to be returned in the same condition as it was received, taking into account fair wear and tear. Any damages caused by the tenant, beyond normal wear and tear, should be repaired or replaced at the tenant’s expense.

Tenant’s Obligations under Statutory Law (The Rental Housing Act)

The Rental Housing Act is a key piece of legislation in South Africa that aims to regulate the relationship between landlords and tenants and provides essential protections for both parties. Many of the points are similar, such as rent payable and looking after the property. Here are the highlights:

• Inspections: The act also requires an ingoing and outgoing inspection.
• Deposit: Tenants are obligated to pay a deposit before occupying the property. The deposit amount should be agreed upon between the tenant and the landlord.

Handling and Refunds of Tenant’s Deposit

Deposits tend to be where tenants and landlords rip out each other’s aortas. The rental housing act has a lot to say about this:

• Interest-bearing account: The landlord needs to put your deposit into an interest-bearing account.
• What can be deducted? The cost of any damage repairs can be deducted from the deposit caused by the tenant and proved in the in-going and outgoing inspections. More details can be found in the article on what constitutes fair wear and tear.
• Return deposit: The rental deposit must be paid back within seven days of the final inspection if no repairs are needed, or within 14 days of repairs being completed.

Rent Payment and Utilities: Rights and Obligations

The rental agreement will set out what fees the tenant is responsible for. In most cases, it would be rent, electricity and water. Even in this, you as a tenant have rights. This is to avoid misunderstandings and promote transparency:

• Tenants have the right to receive receipts for all payments made to the landlord. This serves as evidence of payment and can be helpful for record-keeping and potential disputes.
• Itemised invoice: Tenants have the right to receive a rental invoice that breaks down the different components of the rent, such as the basic rent and any additional charges like utilities.

Early Cancellation of Lease Agreement

The Consumer Protection Act (CPA) states that a tenant can terminate a lease (or contract) before the expiry. However, for tenants, early cancellation of the lease agreement typically comes with an early cancellation fee. Most lease agreements have a clause specifying the penalty or cancellation fee that a tenant must pay if they decide to terminate the lease before its agreed-upon end date.

This fee is intended to compensate the landlord for the inconvenience of finding a new tenant and the potential loss of rental income.

Property Maintenance: Landlord and Tenant Responsibilities

A few years ago, my wife and I rented a cottage in Johannesburg. The landlord wanted an insane amount of rent. The property needed some work and therefore negotiated the rent down by contractually agreeing to repaint the urine-coloured living area and tending to the garden. Property maintenance is therefore negotiable in the rental contract.

But there are cases where landlords have illegally taken the deposit for maintenance and normal wear and tear.  The keywords for understanding if damage or issues within your property is a case of wear and tear are ordinary use, everyday usage, ageing, or exposure to weather elements. For example, if the landlord needs to repaint a wall or fix holes created by the tenant for hanging paintings of cappuccinos, it would constitute as damage to property and the tenant could be held responsible.

Dispute Resolution: Tenant-Landlord Remedies

Both tenants and landlords should attempt to resolve the issue through direct and respectful dialogue. Clear communication can often lead to mutual understanding and resolution without the need for further action.

If direct communication does not resolve the dispute, the next step for tenants is to lodge a claim at the Rental Housing Tribunal. The Rental Housing Tribunal is an independent body established to handle disputes between tenants and landlords. Tenants can file a complaint with the Tribunal, outlining the details of the dispute and providing any relevant evidence. The Tribunal will then conduct an investigation and attempt to mediate between the parties to reach a fair resolution. If mediation is unsuccessful, the Tribunal has the authority to make a legally binding decision to resolve the dispute.

For landlords, it’s essential to comply with the Tribunal’s decisions and cooperate in the resolution process. Non-compliance with the Tribunal’s rulings may result in legal consequences. However, landlords also have the right to take legal action against tenants for breach of the lease agreement or non-payment of rent. Legal action would involve going to court to seek a resolution and possible eviction, but this should be considered a last resort after exhausting other dispute resolution avenues.

Landlord’s Rights and Responsibilities

Just like tenants, landlords also have rights and responsibilities. Here are the main rights:

1. Receive rent: The agreed-upon rent is receivable on time.
2. Choose tenants: Landlords have the right to screen and select tenants based on their suitability and ability to meet the rental obligations. They can conduct background checks, credit checks, and reference checks to ensure they choose reliable tenants.
3. Property access: Landlords have the right to enter the rental property for specific reasons, such as conducting repairs or inspections, provided they give proper notice to the tenant.

Here are some of the landlord’s responsibilities:

1. Property maintenance: The landlord needs to maintain the rental property in a habitable condition.
2. Deposit handling: Landlords are responsible for handling and protecting the tenant’s security deposit.
3. Respect Tenant’s Privacy: Landlords must respect the tenant’s privacy. They should provide proper notice and only enter for legitimate reasons.

Conclusion

Renting property in South Africa offers financial flexibility and the opportunity to avoid the responsibilities of property ownership. As a tenant, it is essential to understand your obligations and rights under both common and statutory law.

Thoroughly review the lease agreement before signing it, ensuring you are comfortable with the terms and conditions, and remember that negotiations are possible. Your responsibilities include prompt rent payment, proper use of the property, and taking care of the premises during your tenancy. Understanding deposit handling and dispute resolution processes can help foster a positive tenant-landlord relationship and a fulfilling rental experience.

Happy investing!