Many tenants enter into lease agreements, paying large sums of money as deposits with an agent or property owner, not knowing anything about their rights in terms of the Rental Housing Act.
The lease agreement is a legal document, which confirms whatever has been negotiated between the landlord and the tenant. It should contain no surprises, thus if a tenant finds on signing a lease that there are extra terms and conditions of which he was not made aware prior to the signing, he can object or not sign the lease.
Many have come to the Rental Tribunal when they have not had a refund of their deposit, the landlord has not carried out necessary maintenance or unfair notice has been issued.
If prospective and current tenants were prepared to educate themselves, there would be far less problems.
Below are some of the main aspects of leasing residential property:
The lease agreement is a legal document, which confirms whatever has been negotiated between the landlord and the tenant. It should contain no surprises, thus if a tenant finds on signing a lease that there are extra terms and conditions of which he was not made aware prior to the signing, he can object or not sign the lease.
A verbal lease is binding though it is always preferable to have a written one.
A deposit is paid if this is expected by the landlord and it must be stipulated in the lease agreement. If it is not in the lease agreement, it need not be paid. The deposit must be placed in a savings account of a bank, the interest being for the tenant’s account.
The deposit is a damages deposit that may be used for all damages caused by the tenant.
The refund of the deposit must be carried out within periods of 7, 14 or 21 days depending on the circumstances. If the lease states that the tenant will have to wait a longer period, it is regarded as an illegal action unless the time period has been negotiated with the tenant.
The Rental Act expects that the property should be jointly inspected by the tenant and landlord prior to moving in when any defects are listed in an inspection list. Both should sign this document and it must be attached to the lease agreement. When moving out the same should happen so that a comparison can be made.
A tenant may be given a chance of repairing the damages or can agree that the landlord does the repairs. The tenant has the right to see all receipts for repairs, which were paid from the deposit. If the repairs were less than the deposit, the balance must be refunded within the days as stipulated in the Rental Housing Act.
If a landlord refuses to do maintenance for which he is responsible in terms of the lease agreement, the tenant can lodge a complaint with the Rental Housing Tribunal.
Increase in rent is generally on an annual basis and should be stipulated in the lease agreement or verbally by the landlord when initially negotiating a lease period.
If an amount is not in the lease agreement, this should be negotiated with the tenant before increasing the rent. It is good to remember that changes cannot be made to a lease agreement by either the tenant or landlord without both parties agreeing to the change.
There is no specific increase by law, though an exorbitant increase in rent can be reported to the Rental Tribunal who will negotiate a reasonable increase.
The most important clause of the lease agreement is around the payment of rent and a tenant must realise if rent is not paid on the date expected, he loses his rights.
If maintenance is not carried out, rather report this to the Rental Tribunal and continue paying rent because it will be difficult to lodge a complaint if rent has not been paid. A tenant is expected to provide proof of payment of rent and any other charges (electricity, water, sewage and garbage) failing which the landlord is entitled to give the tenant notice to vacate and seek a court order for eviction.
The landlord has a lien on the tenant’s possessions while they are in his property and if rent has not been paid the landlord can obtain a court order to attach the tenant’s possessions to the amount of money owed.
Early termination of a lease agreement can be carried out by the tenant or the landlord and either one may give the other 20 business days’ notice to vacate the property.
Keep in mind that the Consumer Protection Act states that both parties should work to mitigate their losses and that a reasonable penalty is permissible. The landlord may only give this notice if there is a breach of the lease agreement.
If a lease has expired, unless it is for a fixed period, it continues on a monthly basis should this not be stated in the lease agreement. This is known as a periodic lease.
A landlord cannot lock a tenant out or terminate electricity or water. A tenant, however, is expected to pay for services and can be given notice to vacate should these services be in arrears.
Article written by Vivien Marks.
