Dos and don’ts of residential letting

Residential letting can lead to serious headaches if your lease agreements are not properly drafted or if there is no lease agreement in place.

Izak Strauss, attorney and private wealth strategist of Attorney Realtor Hub, explains the legislation regarding inspections and damage to property when the lease agreement expires. He further explains how Attorney Realtor Hub can make life much easier for tenants as well as landlords.

In terms of the Rental Housing Act 50 of 1999 there must be:

  • A joint incoming and outgoing inspection with the landlord/agent. This will limit conflict and can be done by taking photos or videos of each room. From that, a list of defects can be drawn up that is signed by both parties. This will ensure that neither party will be able to argue about the defects when the contract expires.
  • A deposit paid by the tenant – this amount to be agreed upon in advance – usually equal to one- or two-months’ rent. The cost of repairing any damage to the property can be deducted from the deposit, excepting normal wear and tear.

According to common law:

  • Tenants must take care of the property and not use it for purposes other than that for which it is rented out.
  • The property must be handed over in the same condition as it was received at the end of the lease. If not, any damage will be recovered from the deposit, except for normal wear and tear.

Tenants have the right to privacy in terms of Rental Housing Act and landlords or their agents may only inspect the premises after reasonable notice has been given.

“I suggest that inspections are also explicitly regulated by the contract, for example every third month, so that it is clearly set out and no misunderstanding can occur, as both parties have agreed on this. This leads to certainty and protects tenants and landlords,” says Strauss.

Tenants’ right to privacy includes the right not to have their person, home or property searched, or their possessions seized, without a court order. Tenants’ right to privacy of communications may also not be infringed.

“The starting point is, therefore, a good lease which complies with legislation and common law, and serves as the basis for the rights of tenants and landlords. The contract must aim to cover all possible aspects and regulate these,” says Strauss.

To ensure that you are on the right side of the law as well as to minimise your chances of having to pay for the damage to your property yourself, ensure that the following is in place:

  • A solid lease agreement.
  • A deposit from the tenant.
  • Regular inspections within the guidelines above.
  • The agreement that any damage can be recovered from the deposit.

Strauss says that many landlords who manage tenants themselves, and even some agents, do not understand legislation and the content of the contracts. This usually leads to a breakdown in the relationship between tenants and landlords due to the incorrect information being relayed.

“Quite recently I had a matter where a tenant simply moved out without handing over the keys of the property – no one could enter the premises and apply the necessary care. Afterwards the agent just wanted to leave everything and pretended that nothing serious happened, as it would entail additional work for her. Your contract will then usually come to your rescue if it is properly drafted,” says Strauss.

Attorney Realtor Hub members are attorneys selling properties, and will from the outset ensure that the correct contracts are in place and both parties understand their rights and obligations for most property transactions. The parties further have full legal assistance at their disposal.

As attorneys and conveyancers, they offer the full spectrum of services related to a property transaction all under one roof: estate agents, attorneys, online bond pre-approvals, bond origination, bond registrations and property transfers.

Call Izak Strauss on 082 876 0769 or email info@izakstrauss.co.za.