If you rent a home, do you know what your rights as a tenant are? While most of us would focus on how much we will pay per month, it is also important to know your rights as well as the rights of your landlord to avoid problems that are difficult to solve.
In the end you have to know what you let yourself in for. According to the Western Cape department of human settlements, as a tenant you have the right not to have your person or residence searched, not to have your possessions seized without a court order and privacy of communication.
Your landlord, on the other hand, has the right to receive prompt and regular payments, recover debt after a court order is issued, and terminate your lease on grounds not deemed unfair and as specified in the lease agreement. When your lease is terminated, the landlord must get the property back in a good state, while they can also claim compensation for damages or improvements from you.
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The lease agreement
The department says a verbal agreement is as binding as a written lease, but if you are required to sign a lease to occupy the premises and you refuse to sign it, there is no agreement and you cannot legally move into the property.
If you rented a property based on a verbal agreement for a time and your landlord then asks you to sign a lease, you do not have to sign it if the terms are not the same. The landlord will then have to negotiate new terms with you.
In any event, it is better to have your agreement in writing to set out the terms and conditions. The information on the agreement must include your name, your landlord’s name, your postal address, your landlord’s postal address, the address of the property being leased, the rental amount and the amount by which the rent will increase, such as 10% when renewing the lease, as well as when the rent will increase.
If the agreement does not specify an amount or date for an increase, the landlord has to negotiate the increase with you. Neither you nor your landlord can make changes to your original agreement without checking with the other party first.
The lease agreement must also state how often rent is to be paid, such as monthly and the amount of the deposit. It must also include your and your landlord’s obligations, such as who is responsible for maintenance and 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.
In addition, the agreement must specify when you or your landlord can give notice to cancel the agreement, such as lack of maintenance or if you do not pay the rent on time. The lease must also state how much your rent can increase when you renew the lease. If your agreement does not specify a reasonable escalation, your landlord has to negotiate an acceptable amount with you.
The house rules, signed by both of you, should be attached to the lease. A list of defects, drawn up at a joint inspection when you move in and signed by both of you, must also be attached to the lease.
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Paying the deposit
You have to pay the deposit if the landlord requires it and it is stipulated in the lease. The landlord or his agent must keep your deposit in an interest-bearing account or trust account, in the case of an agent, for the time you live there.
When you leave, the landlord must pay back the full deposit amount, plus the interest earned, after deducting the cost of any damage you caused and any money you may still owe to the landlord in terms of the lease.
It is your right, in terms of the Rental Housing Act, to insist on a receipt for all payments if your landlord does not automatically supply one. A receipt must contain the date of issue, address of the property, reason for the payment (whether it is rental, arrears or a deposit), period of the payment (the month for which the rent will be paid).
Maintenance of the property
According to the department, maintenance depends on what your lease says. The landlord is usually responsible for maintaining the outside of the property and the tenant the inside.
Can the landlord enter the property whenever they want?
Your landlord has a right to enter the property to perform routine inspections but only after letting you know well in advance to arrange a time that suits you, the department says, but you do not have the right to deny them reasonable access.
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Can the landlord take your possessions if you fall behind on rent?
The department says they must obtain a court order first for the Sheriff of the Court to attach your property to the amount of the money you owe. If your landlord takes your possessions without a court order, it is theft and you should contact the police and lodge a complaint with the Rental Housing Tribunal.
Can the landlord lock you out?
No, and your landlord must give you a duplicate key immediately if they change the locks due to wear and tear or some other reasonable cause.
If you want to move out early
Ending your lease early will depend on the cancellation clause in your agreement. If there is no clause, the only way you can end your lease early without being in breach of contract is if your landlord agrees to it or if your landlord is in material breach of the lease, such as failing to maintain the outside of the property, as agreed in the contract and this makes it impossible for you to remain on the property.
You can also end the lease early in terms of section 14 of the Consumer Protection Act, that allows you to cancel a fixed lease early by giving 20 business days’ notice, but then the landlord can impose a reasonable cancellation penalty – not to punish you but to cover the reasonable costs in securing a replacement tenant.
If your lease expired already and there is no renewal clause in the lease agreement, you and the landlord 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, to get out of the agreement.
Without a cancellation clause, the best way to get out of the contract would be to give your landlord one month’s notice, in writing, before the lease expires.
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What if your landlord refuses to return your deposit?
A deposit is charged to cover any money you may still owe your landlord, and/or the cost of repairs for any damage to the property, exceeding fair wear and tear, that you have caused. If your landlord retains your deposit and is unable to furnish you with proof of the costs he has incurred, you should lodge a complaint with the Rental Housing Tribunal.
You can prevent this by inspecting the property together when you move in and listing, in writing, any existing defects. Both of you should sign this document and it must be attached to the lease agreement.
When you move out, inspect the property together again and compare the new list of defects with the list made when you moved in. the landlord can also give you the opportunity to repair the damage yourself, or you can agree that the landlord will do it. If the landlord does the repairs, you have the right to see all receipts for repairs paid for out of the deposit.
If repairs cost less than the deposit plus the interest accrued, your landlord will have to pay you the difference.
Rental Housing Tribunal
Every province has a Rental Housing Tribunal in its department of human settlements where you can complain about unfair treatment by your landlord.