Read your lease and then sign

Private Property South Africa
Lea Jacobs

In the good old days, a tenant would sign a lease and be held to the terms laid out in the agreement until the specified time frame had elapsed (pacta sunt cervanda). But the Consumer Protection Act (CPA) has complicated matters somewhat. Now, although there may be certain costs involved, a tenant may give the landlord 20 business days’ notice if he wishes to break the lease early.

Other than the notice period, the balance of the issues agreed upon in a lease remain unaffected and enforceable. It is therefore highly recommended that tenants read over the lease and clarify clauses that they are uncertain of before they sign the agreement.

Generally speaking lease agreements are pretty standard documents and templates can be found here, but there are exceptions. Tenants should check carefully to ensure that the deposit issue is fully documented. Aspects such as where the deposit will be held, and by whom, are essential to clarify upfront. Always expect the unexpected: for instance, what will happen if the person holding the deposit goes insolvent or absconds with your money? The lease should also specify that the deposit be held in an interest-bearing account, as dictated by the Rental Housing Act, and the interest is refundable to the tenant when the lease is terminated.

Maintenance

Maintenance is another thorny issue. The respective maintenance duties of the landlord and tenant should be clearly spelt out in the agreement. The “standard you fix the interior and I’ll fix the exterior” agreement often fails when it comes to things like leaking geysers or pool pumps that may or may not have been damaged by the water level falling too low.

Some things are so obvious that they do not have to be reduced to writing in a lease. Even if a lease is silent on some vital aspect, the law will often “fold in” the necessary clause on the following basis: if either party was asked what would happen if the roof caved in, you will find that both parties will say, without hesitation, that the property is not fit for human habitation and therefore cannot be occupied until restored to its original condition, and that no rent will be due until that time.

Permission and responsibility

However, the law will not always intervene and automatically read things into the lease. For instance if, after a bout of unseasonal rain, a tree planted by the tenant sags over the driveway, who is going to pay to rectify the problem? The tenant, because he planted the tree, or the landlord who gave the tenant permission to plant the tree?

The potential landlord/tenant disputes are myriad. Neither the law nor the lease agreement can cover everything. Nevertheless, most disputes arise because they are not mentioned in the lease agreement and, more importantly, because money is not always freely available to either party. You will often find that wealthy tenants and landlords are a lot more flexible because the money necessary for a relatively minor repair is not going to mean missing a school fee payment or cause a failure to put food on the table. Nevertheless, money and principles always remain a bone of contention and some people will fight to the death for either.

Rental Housing Tribunal

When the lines are blurred, landlords and tenants both have recourse via the Rental Housing Tribunal, a statutory body that has offices in every province. A quick Google search will yield the most appropriate contact details.

Also read: Rental dispute? The Rental Housing Tribunal can help

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