1. As a tenant, what are my rights in terms of this act?
In terms of Section 4(3) of the act, a tenant has the following rights:
- a right to privacy (the landlord may only inspect the premises after reasonable notice to the tenant);
- a right not to have his/her person or home searched;
- a right not to have his/her property searched;
- a right not to have his/her possessions seized (except after having obtained a ruling by a Tribunal or an order of Court; and
- a right not to have the privacy of his/her communications infringed.
2. As a landlord, what are my rights in terms of this act?
In terms of Section 4(5) of this act, a landlord has the following rights:
- a right to prompt and regular payment of rental or any charges that may be payable in terms of a lease;
- a right to recover unpaid rental and any other amount that is due and payable after obtaining a ruling by a Tribunal or an order of a Court;
- a right to terminate the lease in respect of rental housing property on grounds that do not constitute an unfair practice and are specified in the lease;
- a right (on termination of the lease) to receive the rental housing property in a good state of repair, save for fair wear and tear and to repossess the said property after obtaining a Court order; and
- a right to claim compensation for damages to the rental housing property or any other improvements on the land on which the dwelling is situated, if any, caused by the tenant, a member of the tenant’s household or a visitor of the tenant.
3. Does a lease agreement have to be in writing?
No, a lease between a tenant and landlord need not be in writing but should a tenant require a written lease agreement, the landlord must reduce the lease to writing.
4. What standard provisions may be included in a written lease agreement?
Section 5(3) provides the following:
- the landlord must furnish the tenant with a written receipt for all payments received by him/her;
- the receipt must be dated and clearly indicate the address of the dwelling in respect of which the payment is made and whether the payment was made in respect of rent, arrears or a deposit;
- the landlord may require a tenant, before moving into the dwelling, to pay a deposit which, at the time, may not exceed an amount equivalent to an amount specified in the agreement or otherwise agreed between the parties;
- the abovementioned deposit must be invested by the landlord in an interest-bearing account with a financial institution and the landlord must pay the tenant such interest at the rate applicable to such account which may not be less than the rate applicable to a savings acocunt with that financial institution;
- the tenant and landlord must jointly, before the tenant moves into the dwelling, inspect the dwelling to ascertain the existence or not of any defects or damage therein with a view to determining the landlords’s responsibility for rectifying any defects or damage or with a view to registering such defects or damage;
- at the expiration of the lease agreement the landlord and tenant must arrange a joint inspection of the dwelling at a mutually convenient time to take place within a period of three days prior to such expiration with a view to ascertain if there was any damage caused to the dwelling during the tenant’s occupation thereof;
- on the expiration of the lease the landlord may apply such deposit and interest towards payment of all amounts for which the tenant is liable under the said lease, including the reasonable cost of repairing damage to the dwelling drung the lease period and the cost of replacing keys;
- the balance of the deposit, if any, must be refunded to the tenant by the landlord not later than 14 days of restoration of the dwelling to the landlord;
- the landlord must keep the relevant receipts which indicate such costs which he incurred and he must make it available for the tenant to inspect;
- should no amounts be due and owing to the landlord in terms of the lease, the deposit, together with the accrued interest, must be refunded by the landlord to the tenant, without any deduction or set-off, within 7 days of expiration of the lease;
- failure by the landlord to inspect the dwelling in the presence of the tenant is deemed to be an acknowledgement by the landlord that the dwelling is in a good and proper state of repair and the landlord will not have a further claim against the tenant who must then be refunded the full deposit and interest by the landlord;
- should the tenant fail to respond to the landlord’s request for an inspection, the landlord must, on expiration of the lease, inspect the dwelling within 7 days from such expiration in order to assess any damages or loss which occurred during the tenancy;
- the landlord may deduct from the tenant’s deposit and interest the reasonable cost of repairing damage to the dwelling and the cost of replacing lost keys;
- the balance of the deposit and interest, if any, after deduction of the amounts abovementioned, must be refunded to the tenant by the landlord not later than 21 days after expiration of the lease;
- should the tenant vacate the dwelling before expiration of the lease, without notice to the landlord, the lease is deemed to have expired on the date that the landlord established that the tenant had vacated the dwelling but in such event the landlord retains all his/her rights arising from the tenant’s breach of the lease.
5. What information must be included in a written lease agreement?
- the names of the tenant and landlord and their addresses in the Republic of South Africa for purposes of formal communication;
- the description of the dwelling which is the subject of the lease;
- the amount of rental of the dwelling and reasonable escalation, if any, to be paid in terms of the lease;
- if rentals are not paid on a monthly basis, then the frequency of rental payments;
- the amount of the deposit, if any;
- the lease period, or if there is no lease period, the notice period requested for termination of the lease;
- obligations of the tenant and landlord;
- the amount of the rental and any other charges payable in addition to the rental in respect of the property.
6. What is the Rental Housing Tribunal and what are its functions?
- The MEC may by notice in the Gazette estasblish a Tribunal in the province, known as the Rental Housing Tribunal.
- Any tenant or landlord or interest group may in the prescribed manner lodge a complaint, concerning an unfair practice, with this Tribunal.
- The Tribunal must first try to resolve the dispute through mediation and if such mediation fails, the Tribunal must conduct a hearing and make a ruling as it may consider just and fair in the circumstances.
- The Tribunal of the Free State has not been established.