Information on the rights and obligations of landlords renting out residential property to tenants, in the form of a set of frequently asked questions.
1. Must I sign a lease with my tenant?
2. What information must be on a written lease?
3. How do I check a potential tenant's background?
4. Should I ask for a deposit?
5. What maintenance must the tenant Do?
6. Can I increase the rent in the middle of a lease period?
7. By how much can I increase the rent when I renew the lease?
8. What can I do if my tenant has not paid the rent on time?
9. What can I do if a tenant claims to have paid the rent, but I haven't received it?
10. Can I take my tenant's possessions if the rent is in arrears?
11. My tenant's lease expired a few months ago. How much notice must I give, if I want my tenant to move out?
12. How do I evict my tenant?
13. Can I enter the property without my tenant's permission?
14. Can I change the locks and lock my tenant out?
15. What can I do if the neighbours complain about my tenant?
16. What should I do if I suspect my tenant is involved in illegal activities on my property?
17. What can I do if the tenant has damaged the property?
18. Which laws govern rental agreements?
19. Who can help me if I have problems with my tenant?
20. How do I go about lodging a complaint with the Rental Housing Tribunal?
21. How do I contact the Rental Housing Tribunal
MUST I SIGN A LEASE WITH MY TENANT?
A verbal agreement is as binding as a written lease, but if your tenant insists on having something in writing, you must comply. It is, however, better for both of you to have your agreement in writing to set out the terms and conditions agreed upon. This will go a long way to preventing later disputes, when it is your word against your tenant's.
WHAT INFORMATION MUST BE ON A WRITTEN LEASE?
* Your name
* Your tenant's name
* Your postal address
* Your tenant's postal address
* The address of the property being leased
* The amount for which you will rent it out
* 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 tenant'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 tenant 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 parties, should be attached to the lease.
* A list of defects drawn up during a joint inspection when the tenant moves in. This should be signed by both you and your tenant and attached to the lease.
HOW DO I CHECK A POTENTIAL TENANT'S BACKGROUND?
Speak to the tenant's current landlord for a reference. It's also a good idea to speak to previous landlords, as the current landlord may give a good reference as a way to get rid of an unwanted tenant, and to get a letter from your tenant's employer to verify his permanent position and income.
You can also do an ITC credit check (call TransUnion ITC on 0861 482 482 or visit www.transunionitc.co.za).
SHOULD I ASK FOR A DEPOSIT?
Yes, it's a good idea to put it in the lease. Remember that the deposit must be put in an interest-bearing account for the duration of the lease and given back to your tenant, plus the interest it has earned, when the tenant moves out.
If, however, your tenant still owes you money on moving out, or if the property has been damaged beyond normal wear and tear, you can use the deposit to pay for repairs or to cover the money owed to you.
See WHAT CAN I DO IF THE TENANT HAS DAMAGED THE PROPERTY? for more on deposits.
WHAT MAINTENANCE MUST THE TENANT DO?
It depends on what your lease says. Usually, a landlord maintains the outside of the property and a tenant the inside.
CAN I INCREASE THE RENT IN THE MIDDLE OF A LEASE PERIOD?
Not unless your lease agreement specifically says you can. If you want, you can add a clause to the initial agreement listing specific reasons that would allow you to increase the rent (for example, if the rates increase).
BY HOW MUCH CAN I INCREASE RENT WHEN I RENEW THE LEASE?
It depends on what it says in your contract. If your contract doesn't specify a reasonable escalation, you will have to negotiate an acceptable rent with the tenant.
WHAT CAN I DO IF MY TENANT HAS NOT PAID THE RENT ON TIME?
Technically, your tenant is in breach of contract. Refer to the breach clause of your contract (or, in the case of a verbal agreement, the agreed on terms for termination) and act on it.
If you don't have a cancellation agreement, it is good practice to write a letter giving your tenant seven days to pay, failing which you will cancel the lease.
WHAT CAN I DO IF A TENANT CLAIMS TO HAVE PAID THE RENT, BUT I HAVEN'T RECEIVED IT?
It is your tenant's responsibility to make sure that you receive the rent, so your tenant will have to show you proof of payment (for example, a bank-deposit slip). If your tenant can't do so, you can give your tenant notice in terms of your agreement and seek a court order for eviction.
If you are satisfied that payment has, indeed, been made, you are then obliged in terms of the Rental Housing Act (Act 50 of 1999) to provide you tenant with a receipt.
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).
CAN I TAKE MY TENANT'S POSSESSIONS IF THE RENT IS IN ARREARS?
You will have to obtain a court order first. The Sheriff of the Court will then attach your tenant's property to the amount of the money due to you. If you take your tenant's possessions without a court order, it's theft.
MY TENANT'S LEASE EXPIRED A FEW MONTHS AGO. HOW MUCH NOTICE MUST I GIVE, SHOULD I WANT MY TENANT TO 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 tenant 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 tenant know, in writing, at the end of the eleventh month.)
HOW DO I EVICT MY TENANT?
You can never evict a tenant yourself. You can only seek a court order to evict a tenant if your tenant is in breach of contract.
To find out if your tenant is in breach of contract, check your agreement. There should be a clause saying what constitutes a breach of contract (for example, not paying the rent on time) and what your rights would be in such a case (in other words, cancel the lease without further notice).
If your tenant is indeed in breach of contract, take steps to strongly urge your tenant to rectify the breach. If this does not work, take legal action - lodge a complaint with the Rental Housing Tribunal or seek the help of a competent attorney.
CAN I ENTER THE PROPERTY WITHOUT MY TENANT'S PERMISSION?
You have a right to enter the property to perform routine inspections and so on, but only after arranging with your tenant to do so at a reasonable time, and with reasonable notice. Your tenant does not have the right to deny you reasonable access.
CAN I CHANGE THE LOCKS AND LOCK MY TENANT OUT?
No. That would be an illegal eviction. If you change the locks, you have to give spare keys to the tenant.
WHAT CAN I DO IF THE NEIGHBOURS COMPLAIN ABOUT MY TENANT?
Check if the tenant's behaviour is in violation of the House rules. If so, you may be able to invoke your lease's cancellation clause and give your tenant notice. Keep a paper trail of complaints and your actions as proof.
WHAT SHOULD I DO IF I THINK MY TENANT IS INVOLVED IN ILLEGAL ACTIVITIES ON MY PROPERTY?
Report your suspicions to South African Police Services. It is also a good idea to add a clause to your lease stating that no illegal activities are to be conducted on the property, which would give you grounds to cancel the lease immediately.
WHAT CAN I DO IF THE TENANT HAS DAMAGED THE PROPERTY?
If you asked for a deposit, you can use the money to repair damages attributed to the tenant beyond normal wear and tear when the tenant moves out. Be sure to follow these steps:
* When your tenant moves in, inspect the property together and list, in writing, any existing defects - both should sign this and it must be attached to the lease agreement.
* When your tenant moves out, inspect the property together again, ideally no earlier than three days before the tenant moves out. Compare the new list of defects with the list you made earlier.
* You may give the tenant a chance to do the repairs personally, or you can agree that you will do it. Hold on to receipts for repairs paid for out of the deposit. Your former tenant has a right to see them.
* If repairs cost less than the deposit plus the interest accrued, you will have to reimburse your former tenant with 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
WHO CAN HELP ME IF I HAVE PROBLEMS WITH MY TENANT?
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.
CONTACT THE RENTAL HOUSING TRIBUNAL
Every lease agreement and rental situation is different. If you need help managing your tenant, contact the Western Cape Rental Housing Tribunal or a competent attorney for advice.
The office hours are from 8.30 am to 4pm, Monday to Friday.
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
- Rental Housing Tribunal