The Rental Housing Act recognizes the right of property owners to receive a reasonable return on their investment, but obliges them to look after their properties and treat tenants fairly. The law awards tenants with the following rights:
While a tenant is leasing a property the tenant has the right to privacy, and if the landlord wants to inspect the property during the lease, he or she must give the tenant a reasonable amount of warning (inspections are explained in detail below). The tenant and the members of his/her household and bona fide visitors of the tenant has the right not to have the property searched, not to have his or her possessions seized and for his or her communications (telephone calls and post) to be private.
Terms and conditions of a lease agreement:
In terms of the Rental Housing Act, a lease must contain the following minimum information:
• the landlord's name and address;
• the tenant's name and address;
• a description of the property, e.g. its address;
• how much rent the tenant must pay and details of any escalation (increases in rent);
• any other moneys which the tenant must pay;
• when the rent must be paid it is usually at the beginning of each calendar month;
• how much deposit the tenant must pay as security for any damage he or she might cause;
• the period of the lease if there is no specific period, the lease must state how much notice must be given to end it;
• the landlord's and tenant's obligations towards each other;
• a list of existing defects to the property;
• any house rules that the tenant will have to obey; and
• a list of furniture and fittings (if the property is being let as a furnished unit).
Inspection of a rental property:
Before moving into a rental property, both the landlord and tenant must inspect the property and compile a list of defects which must be attached to the lease.
When the tenant moves out, the property must be inspected again to establish if the tenant caused any damage. This inspection should occur three days before the tenant moves out. If the tenant does not agree, the landlord must do such inspection within seven days after the tenant left the premises. If the inspection does not reveal any damage which is attributable to the tenant, and provided that the tenant returns the keys, the landlord must refund the full deposit plus interest within seven days.
If the inspection shows that the tenant did cause damage, the landlord may pay for the necessary repairs and replacements out of the deposit and must refund the balance plus interest within fourteen days. The relevant receipts, which indicate the cost of repairs, must be presented to the tenant should he/she request it.
If the tenant owes any money to the landlord, the landlord is entitled to deduct it from the deposit before refunding it. Furthermore, if a tenant vacates the property before the lease expires, and he/she did not give sufficient notice, the landlord is entitled to retain the deposit.
’Huur gaat voor koop’
Generally speaking, the law regards the set of legal rights associated with ownership as the most complete and comprehensive array of rights a person can hold and exercise. However, these rights are not without limit or restriction, and one such restriction exists where a tenant is leasing a property which has been purchased.
By law, despite the sale and even the transfer of the property to the new owner, the tenant of the property which has been sold is entitled to continue occupying the property until his/her lease expires. The legal principle at work here is called ‘huur gaat voor koop’, which effectively means that a lease agreement takes precedence over a sale.
If the purchaser wishes to move into the property, he or she is therefore not entitled to do so until the tenant’s lease has expired and he/she has moved out.
However, if the purchaser does not intend to occupy the property him/herself, but rather has bought it as an investment, such purchaser then takes over the role of landlord from the seller as soon as transfer of the property into his/her name has been registered.
Disputes
If there is a dispute between a tenant and a landlord, either or both of them can refer it to the Rental Housing Tribunal for the province in which the property is situated. The tribunal has the power to take evidence, hold hearings, make decisions, and issue orders. Contact the provincial government for details.
Please note: We have compiled this information in good faith, but we accept no liability for any errors, or for any use that is made of it, or for any problems or damage that may arise as a result of using or acting upon this information.
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Advice for landlords
The Rental Housing Act recognizes the right of property owners to receive a reasonable return on their investment, but obliges them to look after their properties and treat tenants fairly. The law imposes the following obligations on landlords:
In advertising a dwelling for purpose of leasing it, or in negotiating a lease with a prospective tenant, or during the term of a lease, a landlord may not unfairly discriminate against such prospective tenant/s, or members of such tenant/s household, visitors or family members, on one or more grounds, including race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language or birth.
A landlord is free to charge any rent he/she wishes, keeping in mind that it should be reasonable. A lease between a landlord and tenant need not be in writing, however, if a tenant insists that it is the landlord must comply with it.
The landlord must issue the tenant with a written receipt for every payment received. If the tenant pays a deposit, the landlord must invest it in an interest bearing bank account, and a written statement should be available of the interest earned whenever the tenant ask for one.
The landlord has the right to prompt and regular payment of rental. If the rent is not received on time the landlord reserves the right to sue the tenant for dept or obtain a court order to evict him/her from the property.
Terms and conditions of a lease agreement:
In terms of the Rental Housing Act, a lease must contain the following minimum information:
• the landlord's name and address;
• the tenant's name and address;
• a description of the property, e.g. its address;
• how much rent the tenant must pay and details of any escalation (increases in rent);
• any other moneys which the tenant must pay;
• when the rent must be paid it is usually at the beginning of each calendar month;
• how much deposit the tenant must pay as security for any damage he or she might cause;
• the period of the lease if there is no specific period, the lease must state how much notice must be given to end it;
• the landlord's and tenant's obligations towards each other;
• a list of existing defects to the property;
• any house rules that the tenant will have to obey; and
• a list of furniture and fittings (if the property is being let as a furnished unit).
How to go about letting your property:
When renting your property you, as the owner, have the choice between managing the property yourself or employing an estate agency to manage the property for you. Letting (renting) a property requires compliance with many legal obligations in terms of the Rental Housing Act and the help of an estate agency can reduce risks and will avoid unnecessary stress and anxiety.
If you decide to let the property privately, keep in mind that a private rental agreement requires considerable effort and there are some hidden pitfalls you should be aware of. When renting out your property you first need to decide how much rent you want to charge. Unless your property is rent-controlled (which very few are nowadays), you are free to charge any rent you wish. However, you need to be realistic and charge a rent that a tenant is willing to pay. This is usually influenced by the rents being charged for other properties in the neighbourhood, and by the condition and features of the property. Your second step will be to find a tenant. The best way is to advertise in the newspaper and/or the Internet. Alternatively you can display a sign outside your property. If someone wants to rent your property, you are advised to do a credit reference and ask for proof of the applicant’s income.
However, if you decide to use the services of an estate agency, the incumbent will have the following obligations:
• advise you on a market-related rental for your property;
• show and advertise your property;
• receive offers from prospective tenants;
• check their credit records and other references;
• present the applications to you for a decision;
• draw up a lease contract between yourself and the successful applicant;
• inspect the property with the tenant prior to the tenant moving in;
• collect the tenant’s deposit and keep it in an interest-bearing trust account;
• receive the rent each month, and pay it over to you;
• handle all complaints and inspect the property regularly to ensure that the property is being maintained.
If you use an estate agency, you will have to pay commission for the services rendered. There is no fixed commission rate in South Africa and commission is therefore negotiable. You are free to shop around for the best price, but make sure that you get the service and support you want.
Disputes
If there is a dispute between a tenant and a landlord, either or both of them can refer it to the Rental Housing Tribunal for the province in which the property is situated. The tribunal has the power to take evidence, hold hearings, make decisions, and issue orders. Contact the provincial government for details.
Please note: We have compiled this information in good faith, but we accept no liability for any errors, or for any use that is made of it, or for any problems or damage that may arise as a result of using or acting upon this information.
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