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Frequently Asked Questions for Tenants

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Frequently Asked Questions for Tenants

by Cape Gateway
13 Feb 2007
Cape Gateway
Cape Gateway

Information on the rights and obligations of people who rent residential property from a landlord or letting agent in the form of a set of frequently asked questions.



Questions
1. Must I Sign a Lease with my Landlord?
2. What Information must be on a Written Lease?
3. Must I Pay a Deposit?
4. What happens to my Deposit while I'm Living on the Property?
5. What Maintenance must the Landlord Do?
6. What can I do if the Landlord Refuses to Maintain things he said he would?
7. Can my Landlord Enter the Property Without my Permission?
8. Can my Landlord Increase my Rent when he Wants to?
9. By how much can my landlord increase my rent when I renew the lease?
10. What can I do if my landlord says I haven't paid the rent when I have?
11. Can my Landlord take my possessions if I fall behind on rent?
12. How can I end my lease early?
13. My lease expired a few months ago. How much notice must I give before I can move out?
14. Can my landlord lock me out?
15. Can my landlord refuse to return my deposit?
16. Which laws govern rental agreements?
17. Who can help me if I have problems with my landlord?
18. How do I go about lodging a complaint with the Rental Housing Tribunal?
19. How can I contact the Western Cape Rental Housing Tribunal?


MUST I SIGN A LEASE WITH MY LANDLORD?
A verbal agreement is as binding as a written lease. However, if a written lease is required for you to occupy premises and you refuse to sign it, there is no agreement and you can't legally move into the property.

If you have rented a property on a verbal basis for some time and your landlord then asks you to sign a lease, you do not have to sign a lease with terms that are different to your verbal agreement. Rather, the landlord will have to negotiate new terms with you and secure your agreement first.

Remember, it is always better for both of you to have your agreement in writing, setting out the terms and conditions of your agreement. This will go a long way to preventing later disputes.

WHAT INFORMATION MUST BE ON A WRITTEN LEASE?
* Your name
* Your landlord's name
* Your postal address
* Your landlord's postal address
* The address of the property being leased
* The amount for which you will rent it
* 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 rates increase)
* How often rent is to be paid (for example, monthly)
* The amount of the deposit, if any
* Your and your landlord'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 landlord can give notice to cancel the contract (for example, if specific maintenance is not done, or if the tenant is in arrears with the rent)
* The House rules, signed by both of you, should be attached to the lease.
* A list of defects, drawn up at a joint inspection when you move in and signed by both of you, must also be attached to the lease.

MUST I PAY A DEPOSIT?
Yes, if the landlord asks for one and it is stipulated in the lease. If the terms of your original agreement, whether oral or written, did not include a deposit, you need not pay one if the landlord asks you to do so later. Changes to an agreement are only valid if both you and your landlord agree to it.

WHAT HAPPENS TO MY DEPOSIT WHILE I'M LIVING ON THE PROPERTY?
The landlord or his agent must keep your deposit in an interest-bearing account (or trust account, in the case of an agent) for the time you are living on the property. The full deposit amount, plus the interest earned, must then be returned to you when you move out less the costs of damages caused by you and any monies you may still owe to the landlord in terms of the lease.

WHAT MAINTENANCE MUST THE LANDLORD DO?
It depends on what your lease says. Usually, a landlord maintains the outside of the property and a tenant the inside.

WHAT CAN I DO IF THE LANDLORD REFUSES TO MAINTAIN THE THINGS HE SAID HE WOULD?
Lodge a complaint with the Rental Housing Tribunal.

CAN MY LANDLORD ENTER THE PROPERTY WITHOUT MY PERMISSION?
Your landlord has a right to enter the property to perform routine inspections and so on, but only after letting you know well in advance to arrange a time that suits you. You do not have the right to deny him reasonable access.

CAN MY LANDLORD INCREASE MY RENT WHEN HE WANTS TO?
No, the lease or verbal agreement determines when, and by how much, your rent can be increased. If the agreement does not specify an amount or date for an increase, the landlord has to negotiate the increase with you. Neither you nor your landlord can make changes to your original agreement without checking with the other party first.

BY HOW MUCH CAN MY LANDLORD INCREASE MY RENT WHEN I RENEW THE LEASE?
This is specific to the renewal terms of your agreement. If your agreement doesn't specify a reasonable escalation, your landlord has to negotiate an acceptable rent with you.

WHAT CAN I DO IF MY LANDLORD SAYS I HAVEN'T PAID THE RENT WHEN I HAVE?
It is your responsibility to make sure that your landlord receives the rent, so it will be up to you to provide proof of payment (for example, a bank-deposit slip). If you can't, your landlord will be able to give you notice in terms of your agreement and seek a court order for eviction.

It is your right, in terms of the Rental Housing Act (Act 50 of 1999), to insist on a receipt for all payments if your landlord does not automatically supply you with one. A receipt must contain the following information:

* The date of issue
* The address of the property for which the payment is made
* The reason for the payment (whether it's rental, arrears or a deposit)
* The period of the payment (for example, the month for which the rent will be paid).
If your landlord refuses to give you a receipt, lodge a complaint with the Rental Housing Tribunal.

CAN MY LANDLORD TAKE MY POSSESSIONS IF I FALL BEHIND ON RENT?
He has to obtain a court order first. Then the Sheriff of the Court will attach your property to the amount of the money you owe. If your landlord takes your possessions without a court order, it's theft and you should contact the South African Police and lodge a complaint with the Rental Housing Tribunal.

HOW CAN I END MY LEASE EARLY?
It depends on the cancellation clause in your agreement. If there is no such clause, the only way you can end your lease early without being in breach of contract is if your landlord agrees to it or if your landlord is in material breach of the lease (for example, by failing to maintain the outside of the property, as agreed in the contract, and this makes it impossible for you to remain on the property. But you will have to prove this, though).

If your landlord has met all the conditions of the lease, you can still end the lease early but will yourself be in breach of contract. This means your landlord can demand the balance due by you for the rest of the lease period, and you may lose your deposit.

Speak to your landlord before making a move: many are willing to allow subletting or to terminate a lease after a suitable notice period on condition that you find a suitable replacement tenant. If your landlord agrees to terminate a contract prematurely, be sure to get it in writing, outlining the terms and conditions of the termination.

MY LEASE EXPIRED A FEW MONTHS AGO. HOW MUCH NOTICE MUST I GIVE BEFORE I CAN MOVE OUT?
Check your previous lease for a renewal clause that outlines how much notice you must give in such a situation.

If there is no such clause, then the two of you have, through your actions, effectively renewed the previous lease, on the same terms and conditions, and for the full period stated in the original agreement. This means that you will have to invoke the cancellation clause of the original lease, if there is one, in order to get out of the agreement.

Without a cancellation clause, the best way to get out of the contract would have been to give your landlord one month's notice, in writing, before the lease expired. (So if you were nearing the end of a 12-month lease, you should have let your landlord know, in writing, at the end of the eleventh month.)

CAN MY LANDLORD LOCK ME OUT?
No. Your landlord must give you a duplicate key immediately if he changes the locks due to wear and tear or some other reasonable cause.

CAN MY LANDLORD REFUSE TO RETURN MY DEPOSIT?
A deposit is there to cover any money you may still owe your landlord, and/or the cost of repairs to any damage to the property, exceeding fair wear and tear, that you have caused.

If your landlord retains your deposit and is unable to furnish you with proof of the costs he has incurred, you should lodge a complaint with the Rental Housing Tribunal.

To prevent this, be sure to follow these steps:

* When you move in, inspect the property together and list, in writing, any existing defects. Both of you should sign this document and it must be attached to the lease agreement.
* When you move out, inspect the property together again. Compare the new list of defects with the list made earlier.
* You may be given a chance to repair the damage yourself, or you can agree that the landlord will do it. If the landlord does the repairs, you have the right to see all receipts for repairs paid for out of the deposit.
* If repairs cost less than the deposit plus the interest accrued, your landlord will have to reimburse you the difference.

Contact the Rental Housing Tribunal if you have problems.

WHICH LAWS GOVERN RENTAL AGREEMENTS?
* Rental Housing Act (Act 50 of 1999)
* Law of Contracts
* Common Law
* Constitution

WHO CAN HELP ME IF I HAVE PROBLEMS WITH MY LANDLORD?
The Rental Housing Tribunal.

HOW DO I GO ABOUT LODGING A COMPLAINT WITH THE RENTAL HOUSING TRIBUNAL?
Fill in the complaint form on the site and deliver it by fax, mail or hand to the Tribunal.

HOW CAN I CONTACT THE WESTERN CAPE RENTAL HOUSING TRIBUNAL?
Every lease agreement and rental situation is different. If you suspect that your landlord is acting illegally, consult the Western Cape Rental Housing Tribunal or a lawyer for advice.
Tel: 021 483 2111
021 483 3944
021 483 2189
021 483 2099
021 483 4383
Fax: 021 483 2060
Postal Address: Private Bag X9083, Cape Town, 8000
Physical Address: Department of Local Government and Housing
27 Wale Street, Ground Floor, Cape Town


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