CAN THE LANDLORD (ESTATE AGENT) PERFORM A CREDIT CHECK ON ME?
Yes, TPN recommends that landlords perform a credit report on all adults over the age of 18 applying for rent.
In terms of the National Credit Act Regulations 18 (4) (e) and (5) the tenant must first give his / her consent before the landlord (estate agent) can access your credit report.
If you refuse to give consent for the landlord (estate agent) to perform your credit check – the landlord (estate agent) is entitled to decline your application for rent.
AM I ENTITLED TO KNOW WHY MY APPLICATION WAS DECLINED?
Yes, reasons for rejecting your application for rent might include your credit profile, affordability or suitability such as "no pets" allowed in the complex.
You application may not be rejected due to discrimination on the grounds of race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.
SHOULD THE LEASE AGREEMENT BE VERBAL OR WRITTEN?
A verbal lease agreement is binding. However a written lease agreement is advisable as this protects both the tenant and the landlord in the event of a dispute.
In terms of the Rental Housing Act, the tenant can demand the lease is reduced to writing.
The tenant is entitled to a free copy of their lease agreement. However if the tenant looses their copy of the lease agreement, the landlord (estate agent) can impose a cost to provide the tenant with a second copy.
SHOULD I CO-SIGN THE LEASE AGREEMENT WITH ANOTHER TENANT?
The landlord is entitled to demand that all adults over the age of 18 co-sign the lease jointly and severally liable.
This means that if any one of the co-tenants does not pay their portion of the rent, all the tenants become liable for any outstanding portion.
It is important that you, the tenant, understands your responsibility to the landlord. If you are unsure of your co-tenant's ability to timeously pay their portion of the rent, it could affect your continued occupation of the property and your credit profile.
DO I NEED TO PAY A DEPOSIT?
The tenant and the landlord will negotiate this up-front. The amount of deposit due will be written in the lease agreement.
The landlord is entitled to negotiate what ever deposit he / she deems fit. It is common for the landlord to require one months rent or a double deposit (2 months rent). The landlord could even require a triple deposit if the tenant's credit report is considered risky.
However once the amount of the deposit has been agreed, the landlord cannot demand a bigger deposit during the term of the lease – unless the tenant agrees.
Practically, the landlord should not hand over the keys to the property until the agreed deposit and first months rent has been paid (and cleared in the case of a cheque).
AM I ENTITLED TO RECEIVE INTEREST ON MY DEPOSIT?
In terms of the Rental Housing Act, if the landlord holds the deposit, he / she must invest the deposit in an interest bearing account with a minimum rate of interest applicable to a savings account. The landlord can not contract out of this legal obligation.
You are entitled to request written proof of the interest earned and if requested, the landlord is obliged to provide such proof.
If the deposit is held by the estate agent, this is regulated by the Estate Agents Affairs Act – read your lease agreement – some lease agreements provide that no interest is paid to the tenant and in this case, the estate agent does not need to refund the deposit with interest.
Please also refer to the section on refunding the deposit.
MUST I GIVE THE LANDLORD (ESTATE AGENT) ACCESS TO INSPECT THE PROPERTY?
Yes, the landlord (estate agent) is entitled to inspect the property. But the inspection must be pre-arranged for a reasonable time.
You may not unreasonable deny the landlord (estate agent) access to inspection.
The landlord may not enter the property without your consent which consent you may not unreasonably withhold.
MUST THE LANDLORD MAINTAIN THE PROPERTY AND TO WHAT EXTENT?
Common law states the landlord must hand over and maintain the property fit for the purpose for which it was let.
However many lease agreements deal with maintenance of the property differently. It is advisable to ensure you have read the "Maintenance" clause of the lease agreement carefully to ensure you are aware of your obligations and the landlord's obligations.
Most lease agreements provide that the landlord is responsible to maintain the structure of the property and any electrical, plumbing or electrical apparatus which you have not damaged.
Generally the tenant is responsible to maintain the inside of the property "fair wear and tear" excluded. If the property has a garden or pool, it is common that the tenant is responsible to maintain the up keep of the garden or pool. Remember – it is important to refer to your written lease agreement.
The landlord does not have an obligation to fix every item the tenant deems necessary. Items which render the property unfit for the purpose for which they were let, such as no water / electricity, a burst geyser, non-working oven etc would need to be attended to by the landlord. However the landlord would not be obiligated to fix items such as missing internal keys, blown light bulbs and squeaky doors.
Again, it is important to point out that many lease agreements provide for different obligations pertaining to maintenance – read your specific lease agreement to confirm your responsibilities and the landlord's.
CAN I WITHHOLD RENT IF THE LANDLORD DOES NOT MAINTAIN THE PROPERTY?
The landlord must maintain the property fit for the purpose for which it was let. If the landlord fails to honour this obligation, you may demand in writing that he attend to the maintenance. The maintenance in question must be a material breach by the landlord such as no water / electricity, a burst geyser or non-working oven. A material breach does not include missing internal keys, blown light bulbs etc.
If the landlord fails to remedy a material breach you should cancel the lease and vacate the property or take legal action.
If you withhold rent, you yourself are committing a material breach and the landlord can take the necessary action to collect the rent - cancellation of the lease, court order eviction or blacklisting on credit bureaux.
CAN I USE MY DEPOSIT AS THE LAST MONTH'S RENT?
No, you have an obligation to pay the proper amount of rent at the proper place and time.
If you fail to pay the last month's rent you are committing a breach of lease and the landlord is entitled to take the necessary legal action including blacklisting on credit bureaux.
DO I HAVE A 7 DAY GRACE PERIOD TO PAY MY RENT?
No, the landlord is entitled to receive the proper amount of rent paid by the tenant at the proper place and time.
The lease agreement will note the rent due date. Most lease agreements state the rent is due and payable in full, free from deductions on or before the 1st of each and every month. The tenant would then be in breach of contract if the rent was still outstanding on the 2nd of the month.
The lease agreement will determine the payment date – a tenant and landlord might negotiate that the rent is paid on the 15th of the month. If so, the tenant's rent only becomes due on the 15th and if not paid on the 16th – the tenant is in breach of contract.
There is no law which provides the tenant a 7 day grace period to pay their rent.
CAN THE LANDLORD (ESTATE AGENT) CANCEL MY LEASE AND EVICT ME IF I DO NOT PAY RENT?
Yes, you have an obligation to pay the proper amount of rent at the proper place and time.
If you fail to pay the rent, the landlord can take action to demand the rent, cancel the lease or obtain a court order and have the sheriff of the court forcibly evict you.
CAN I CANCEL THE LEASE EARLY?
Refer to the lease agreement, specifically to any cancellation clause.
If the lease agreement is month-by-month, then a calendar months notice is required to cancel the lease.
If the lease agreement is for a fixed period and there is no cancellation clause, then the tenant cannot cancel the lease except if the landlord breaches the lease, or agrees to the early cancellation of the lease.
CAN THE LANDLORD CANCEL MY LEASE IF THE PROPERTY IS SOLD?
The tenant is protected by the common law "huur-gaat-voor-koop." If the property is sold, the new owner becomes the landlord and all the terms of the existing lease are enforceable.
The owner cannot cancel the lease, but must wait until the end of your existing lease period.
The new owner is also responsible to refund your deposit less any claim for damage.
MUST I PERFORM AN INCOMING AND OUTGOING INSPECTION OF THE PROPERTY?
In terms of the Rental Housing Act, the tenant and landlord (or estate agent) must jointly perform incoming and outgoing inspections. This is to place on record any defects and subsequent damage for which the tenant may be liable. The incoming inspection does not place any obligation on the landlord to fix any defects.
If the landlord (estate agent) does not perform the outgoing inspection within 3 days of the expiration of the lease, it is deemed the property was handed back in good order and the landlord will have no further claim for damages.
However, if the landlord attempts to make arrangements for the outgoing inspection and the tenant fails to respond, the landlord can access the property within 7 days of the expiration of the lease to assess for any damages and apply the costs for repair against the deposit.
WHEN MUST MY DEPOSIT BE REFUNDED?
Refer to section on incoming and outgoing inspection and interest earned on the deposit.
Further, the landlord can apply the deposit to any amount due by the tenant - outstanding rent or utilities, reasonable payment for damages to the property (for example: cleaning of carpets, lost keys or remotes and returning the state of the property back to its original state at the beginning of the lease), fair wear and tear excluded.
If during the outgoing inspection, it is established there are no damages, the deposit must be refunded within 7 days of expiry of the lease.
If during the outgoing inspection, damages are noted, the balance of the deposit must be refunded within 14 days of restoration of the property.
If the tenant fails to attend the outgoing inspection, the balance of the deposit must be refunded within 21 days of the expiry of the lease.
The tenant is entitled to all receipts for the cost of repairing any damages
The tenant and landlord cannot contract outside of these obligations. For example, the landlord (estate agent) cannot state in the lease agreement that the deposit will only be refunded in 30 days – this would be in contravention of the Rental Housing Act.
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