The Rental Housing Act 50 of 1999 has been around for a while and governs landlord and tenant transactions. It places duties on the parties to a lease agreement, and penalties for breach. The Rental Housing Tribunal is recognised in law and any ruling by the Tribunal is deemed to be an order of the Magistrate’s Court in terms of the Magistrate’s Court Act 32 of 1944. The tribunal can award fines and/or imprisonment up to 2(two) years for violations.
The frequently encountered requirement is Section 5(3) (e). This section deals with defects. Repairs which need to be done at the expiration of the lease stem from the differences in the condition of the property prior to the tenant taking occupation and the condition of the property at the expiration of the tenacy. The Act permits the landlord to deduct the reasonable costs of repairs from any deposit (or interest accrued), and it is important to look at the initial requirements for the noting of defects.
Attention must be drawn to the wording of the section, and the implementation thereof. The act requires that an inspection be conducted by the landlord and tenant prior to the tenant taking occupation of the premises. Defects or the non-existence of defects must be noted (Section (5)(7)), and this list must be annexed to the lease agreement. The landlord may be represented by his/her duly authorized agent.
Whilst this may seem logical, agents are often guilty of completing the list after occupation, or placing the onus on the tenant to notify them of any defects that exist. This could result in a tenant taking action against the landlord at expiration of the lease when disputes arise. The question that must be asked is not whether defects exist, but whether the inspection was done prior to the tenant taking occupation. If the inspection was not done as required, then this is a contravention of the Act.
A further point of note is Section 5(3) (f), which requires that the outgoing inspection must be conducted within 3 days prior to the expiration of the lease.
To avoid problems, ensure strict compliance. Have the inspections done prior to occupation and make arrangements to have the outgoing inspection done at least 3 days before expiry of the lease.