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lease agreement Archives | Eviction Lawyers South Africa

What’s covered by the rental deposit

By | Lease Agreement, Rent, Rental deposit, Rental Housing Act

This article, from the Personal Finance section of Independent Online, is a clear and helpful explanation of the purpose of the rental security deposit.

rental deposit
File Image: IOL

Reprinted from iol.co.za – 2020-10-06

Following a period of lockdown restrictions that put severe pressure on the income levels of many households, some landlords have had to go through the costly process of applying for a court order to evict defaulting tenants. Adrian Goslett, regional director and chief executive officer of RE/MAX of Southern Africa, explains that the rental deposit exists largely to protect the landlord against defaulting tenants and the lengthy, expensive process that is involved to evict them.

According to Goslett, tenants are protected by the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998, also known as the PIE Act. If the correct procedures are followed, it can take at least eight to 10 weeks for an eviction order to be granted during which time the landlord is out of pocket. “Besides the fact that the landlord is not getting a rental income from the defaulting tenant during that period, they will also have to pay legal costs. An unopposed eviction could cost between R12 000 and R20 000 in legal costs plus disbursements, while the cost of an opposed matter will be substantially more. Section 5 of the Rental Housing Act, No. 50 of 1999 states that a landlord is legally entitled to request a deposit from their tenants. This deposit can be used to help cover these legal costs,” he explains.

With this in mind, most landlords request a deposit from their tenants before they move into the property. The amount that the tenant will be required to pay as a deposit is stipulated in the lease agreement. Conventionally, the rental deposit amount is equal to anywhere from one to even three months’ rent.

“When a tenant pays the deposit, the landlord is required by the Rental Housing Act to place the money in an interest-bearing account, held with a financial institution. The tenant is within their rights to request a statement of the interest earned on the money at any time during their tenancy. Even though the deposit is paid to the landlord, it remains the tenant’s money. The landlord is merely holding the money as a security measure, should the tenant default or breach the rental agreement. If the tenancy runs its normal course, the deposit along with all interest earned on the money must be paid over to the tenant at the end of the lease agreement period,” says Goslett.

However, he warns that the landlord is entitled to deduct from the rental deposit any expenses incurred repairing any damage to the property which occurred during the tenancy. “The remainder of the money must then be refunded to the tenant no later than 14 days after the restoration of the property as dictated by the Act. If repairs are done, the tenant can request to see all repair receipts to confirm that the money was spent to repair the damage they did to the property. The landlord cannot use the deposit for general maintenance or upkeep of the property. If there is no damage to the property, the full deposit and interest must be paid to the tenant within seven days of the lease’s expiration date,” he explains.

Should any disputes arise between the landlord and the tenant regarding the rental deposit, Goslett recommends they can turn to the province’s Rental Housing Tribunal. “The tribunal assists to mediate and resolve disputes between the parties. Before entering into a rental agreement, both the tenant and the landlord should familiarise themselves with their legal rights regarding the tenancy and the rental deposit. Knowledge of the relevant procedures can help prevent unpleasant and costly disputes down the line,” he said.

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Do you have questions about your lease agreement or rental deposit?

Whether you are tenant or landlord, if you have questions or concerns about your existing lease agreement or security deposit, contact Eviction Lawyers for a confidential discussion. We will explain your rights and responsibilities to ensure a worry-free tenancy. Contact Cape Town lawyer Simon Dippenaar now on 086 099 5146 or email him on info@sdlaw.co.za.

Further reading:

How to evict a tenant without a lease

By | Evictions, Lease Agreement

Tenants have rights with or without a written lease

No lease? No change to the eviction process. Eviction lawyers

Your arrangement with your tenant is not working out, and you’ve reached the point where you are considering eviction. But you don’t have a written lease agreement and you’re not sure how to evict a tenant without a lease. What now?

Firstly, you cannot take the law into your own hands. You must follow the correct process if the eviction is to be deemed lawful. Whether or not there is a written lease agreement, if a landlord allows someone to reside on a property and accepts rent, that is regarded as a de facto lease and is binding.

This scenario will soon change, however. The as yet un-gazetted Rental Housing Amendment Act 35 of 2014 compels landlords to have a written lease agreement in place and is just one of the regulations that will further protect the rights of tenants and reinforce the obligations of landlords. 

Landlords and tenants will have six months to comply with the provisions of the Act once the new legislation comes into effect. All new lease agreements must be in writing and verbal agreements will no longer be binding.

Allow time to remedy a breach of contract 

If the tenant is in breach of a rental agreement, the landlord must notify the tenant in writing and allow them to remedy the situation. This might happen if there is excessive noise, there are pets on the property without permission, or rent is in arrears. Unless specified in the lease agreement, a tenant has 20 working days to rectify the breach in accordance with the Consumer Protection Act (CPA). In the case of a verbal agreement, or if the lease has expired but the tenant still lives on the property with the landlord’s permission on a month-to-month basis, the landlord must afford the tenant one calendar month’s notice to make good the situation.

If the tenant fails to repair the breach within the specified time period and the matter cannot be settled, the next step is for the landlord to issue the tenant with a letter cancelling the lease. With a bit of luck, the troublesome tenant will vacate the property at the end of the notice period. However, if the notice of cancellation is ignored and the tenant refuses to leave, the landlord may have no choice but to apply to the court for an eviction order. 

The steps to eviction with or without a written lease

An eviction order will be served 14 days prior to the court hearing and, if the tenant is unable to present a valid defence at the hearing, a warrant of eviction will be issued allowing the sheriff to remove the tenant’s possessions from the property. If the tenant does present a valid defence at the hearing, a trial date will then be set.

Removing a recalcitrant tenant can be extremely frustrating, but failure to observe legal processes will result in an unlawful eviction and possible criminal action. 

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (PIE) sets out strict procedures on how to properly evict unlawful occupiers from residential properties, while prohibiting illegal evictions. It is not permissible to change the locks or turn off the water and electricity. A landlord who does not comply with PIE could face a fine or up to two years imprisonment, so it’s best to hire an eviction lawyer at this stage to ensure the correct procedure is observed.

Keep on the right side of the law

Tenants or landlords may decide to terminate a lease agreement for many reasons, but, whatever the grounds, both parties must act within the law. Simon Dippenaar and Associates are expert eviction lawyers who will ensure the correct procedures are followed every step of the way. We will assist with eviction notices and court appearances to secure a satisfactory outcome. Call us on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

Lease Agreement Template South Africa

Lease Agreement Template – Free Download

By | Lease Agreement | No Comments

Lease Agreement Template Free Download

You have rented out your property but now, for whatever reason, you wish to return and take up occupancy. Are you within your rights as the property owner to remove the tenant, and what do you do if they refuse to vacate?

 

What to do if you want to move back into your property while your tenant still has occupancy

There are two issues to consider. Firstly, your tenant is the current lawful inhabitant and you want to serve a notice to quit, so that you can resume occupancy. The process for this is straightforward. Secondly, what if the tenant refuses to leave, despite due legal process of eviction having been followed? This is a different and more complicated scenario. Let’s look at each in turn.

 

Lawful eviction

To some extent, your rights as landlord depend on what is in the lease agreement. (We’ve written before about the importance of having a written lease. See Tips for a happier tenancy and The Consumer Protection Act and rental agreements.) Under PIE, your tenant is protected against illegal eviction. The Consumer Protection Act (CPA) provides a further layer of protection. In terms of the CPA a tenant is protected for the full term of the lease if there is no material breach on their part. The landlord can cancel the lease if there is a material breach of contract by giving 20 business days’ notice of the breach; but the landlord must give the tenant the opportunity to remedy the breach. Provided they do so, you don’t have the right to evict the tenant and move back in until the end of the contract.

However, when drawing up the lease, it is permissible to include a clause allowing the landlord to cancel the lease, with two months’ notice, if the landlord elects to sell the property or move back in. If the tenant agrees to this clause and signs the contract, then there does not need to be a material breach for the landlord to give notice of eviction, nor is the landlord in breach of any aspect of the tenant’s rights. Without this clause, the tenant is protected upon the sale of the property and the sale can have no impact on the tenant’s right to hold the lease until it expires.

So if you are drawing up a lease agreement for a new tenant and you think you may wish to sell the property in future or resume occupancy for your own purposes, it’s probably wise to include a clause of this nature. But what if you have existing tenants and you have legally given them notice to quit the property, within the terms of the lease and the CPA (perhaps there has been an unremedied breach), and they won’t budge? This is a different situation altogether. What can you do?

 

Unlawful occupancy

At this stage the tenant becomes an unlawful occupier. If you have cancelled the lease lawfully you are entitled to move back into your property, even if the unlawful occupier remains on the premises – effectively cohabiting (whether you would want to do this or not is a different matter). The situation can deteriorate and may result in unpleasant consequences for the landlord, even if there is no misconduct. A tenant with nowhere else to go may behave in a desperate manner, even laying charges of theft, harassment or intimidation against the landlord. Or they may insist the landlord find them alternative accommodation. However, it is not the landlord’s responsibility to re-house the tenant, and this has been tested in the courts.

In Blue Moonlight Properties v Occupiers of Saratoga Avenue, the court found that the property owners’ rights, under the Constitution, should be balanced with those of the occupiers, and ruled that the landowners’ right to equality would be infringed if the state were to burden them with providing alternative accommodation without compensation.

This ruling notwithstanding, if you are in this trying situation, it is not enough to know you are in the right, legally. You may need professional help to reclaim your property. You certainly don’t want to find yourself defending an unsubstantiated accusation of harassment, nor do you want to be share your home indefinitely with someone you didn’t invite.

 

We can help with evictions and your lease agreement

SD Law & Associates are experts in property law and we have vast experience of helping landlords and tenants alike reach satisfactory resolution on a wide range of property disputes, including evictions. Let us help you today with your eviction dispute and lease agreement. Contact Simon on 087 550 2740 or email sdippenaar@sdlaw.co.za.

 

Lease Agreement – Free Download

Lease Agreement Template – Click here (Right click to save PDF)

 

Recommended reading

Original article taken from SDLaw.co.za