In cases where property has been damaged due to hail; floods or tornado’s or any other circumstances beyond the control of the Tenant it is imperative to distinguish whether the premises have been damaged to a point that it is no longer safe to reside in the property, or if the property is damaged but is still deemed safe to reside in.

 If the Premises leased is no longer safe to reside in:

If the Property leased is no longer structurally sound, it is imperative to follow all evacuation procedures to guarantee the safety of all Parties. In respect of the premises, the Parties should consider the Liability clause in their Leases. As per TPN’s current Residential Lease Agreement:

 “should either Party suffer any loss as a result of a natural disaster, or any other incident beyond the control of the other Party, it is hereby agreed that such Party will, in no way be entitled to a claim for damages as a result of such incident from the other Party, In the in the event that a natural disaster, or any other incident beyond the control of either Party, renders performance by either Party impossible, this Lease Agreement shall terminate immediately and neither Party shall have any claim for damages against the other Party”.

Therefore, due to the floods being beyond the control of either party, neither the Landlord nor Tenant should be entitled to claim for damages as a result of the floods.

 The Lease shall terminate immediately, and any deposit held in trust by the Landlord or Property Practitioner should be released back to the Tenant as per the Lease Agreement, considering the circumstances.

 If the Premises leased is damaged but still safe to reside in:

In instances where the leased premises is damaged by a natural disaster, such as a flood or violent storm, the liability in respect of the repairs to the immovable property, that is the structure and permanent fittings, lies with the Owner of the Premises.

In terms of sectional title schemes, section 37 of the Sectional Title Act, explains that the Body Corporate is responsible to repair damage to the common property. An example in this respect, would be any damage to the roof or foundations of a complex as a result of the floods or rain.

Summary

If the tenant cannot reside in the property because of the conditions rendering it uninhabitable then the rental is not payable by the tenant – they cannot pay rent for a property that they cannot use.

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 stipulate 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 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.

In South Africa, it is commonly accepted that a landlord is responsible to pay the rates and taxes and the tenant pays for all consumption and use of the service provided.

This, however, can be stipulated in the Lease agreement signed by the Tenant and Landlord, so that all or some of the rates and taxes are the responsibility of the tenant.

Over the years, because the sewerage and refuse are services used by the tenant, most contracts have been drafted to provide that the tenant is responsible for these charges, BUT, it must be stated in the lease agreement. 

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) you must first obtain the consent of each applicant before you access their credit report. TPN has drafted the consent clause for your use.

If the applicant tenant refuses to provide consent for you to perform his / her credit check – you are then not entitled to access the credit report. It is recommended that you decline the tenant’s application for rent.

Yes, the Property Practitioner is acting as an agent for the landlord. Ultimately the landlord takes the risk should the tenant default on the rent. Every landlord has a different appetite for risk and will accept or decline the applicant tenant based on the credit report, affordability assessment and any other relevant information.

The landlord can and should demand to see the all applicant tenant's credit reports before making a decision to accept the tenant.

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.

For more information, please see TPN's Video on the Rental Housing Act.

Any person over the age of 18 may sign a lease agreement.

TPN recommends that all adults over the age of 18 should be jointly and severally liable for the rent.

History shows that spouses have been known to hide behind each other’s credit profiles - there have also been cases of siblings, co-workers and even friends entering into lease agreements where only one tenant signs the lease but all the habitants will pay their portion of the rent. If all the habitants do not pay their portion – then the landlord can only take legal action or blacklist the tenant who signed the lease agreement. This limits the landlord's ability to recover non-paid rent.

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 whatever deposit he / she deems fit. It is common for the landlord to require one months rent or even 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 or unless the lease agreement makes provision for a topup when the rent increases.

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).

Clause 1.9 of the TPN Lease Agreement offers an option to create a suspensive condition that if the tenant does not pay the deposit, the lease agreement is invalid.

In terms of section 5(3)(d) of the Rental Housing Act, if the landlord or Property Practitioner 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 tenant is entitled to request written proof of the interest earned and if requested, the landlord / Property Practitioner is obliged to provide such proof.

Please also refer to the section on Refunding the Deposit. 

For more information, please see TPN's video on the Rental Housing Act or read our interesting blog article on deposits to find out more...

https://mrisoftware.tpn.co.za/blog/rental-deposits-demystified-what-when-how-and-why/ with a downloadable PDF for your office http://bit.ly/3L1UZoY

Common law provides that the landlord must hand over and then 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.

Most lease agreements provide that the landlord is responsible to maintain the structure of the property and any electrical, plumbing or electrical apparatus which was not damaged by the tenant. 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.

For more information, please see TPN's video on Unfair Practises

Yes, the landlord or Property Practitioner has the right to enter the property to perform routine inspections, but only after arranging with the tenant to do so at a reasonable time, and with reasonable notice. The tenant does not have the right to deny the landlord or Property Practitioner reasonable access.

The landlord or Property Practitioner may not demand over-zealous access to the property as this would interfere with the tenant's right to peaceful enjoyment of the property.

Read our interesting blog article on reasonable access - https://mrisoftware.tpn.co.za/blog/is-your-tenant-refusing-access-to-the-property/

Refer to our wiki on the importance of performing the joint incoming and outgoing inspection here.

Watch TPN's video on Unfair Practises. 

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.

For more information, please see TPN's video on the Consumer Protection Act.

If the tenant does not pay the rent, the tenant is in breach of contract (written or verbal).

Practically the first step of action is to contact the tenant to establish the reason for non-payment. You will know your tenant and be able to read if this is a once-off situation or if the tenant routinely pays late or only partially.

It is important to read the specific lease agreement's rent due and breach clauses as there are different ways to remedy the breach of non-payment. 

Either you may cancel the lease forthwith or you are required to demand payment in writing giving the tenant 7 calendar days (in the event of a non-CPA lease agreement) or 20 business days(in the event of a CPA lease agreement) to remedy their breach. 

Should the tenant fail to remedy their breach in accordance with the letter of demand, then the landlord is entitled to cancel the lease agreement and demand that the tenant vacate the property.

 Should the tenant fail to vacate the property as requested, then the landlord must take legal action to obtain a court order Eviction, after which the Sheriff of the Court will forcibly remove the tenant.

No, this is a criminal offence in terms of the Rental Housing Act.

The landlord or Property Practitioner cannot change the locks, remove the front door or take any action which effectively locks the tenant out from the property or denies him peaceful occupation of the property without a court order.

No, it is a criminal offence in terms of the Rental Housing Act for the landlord or Property Practitioner to disconnect utilities. 

Only a service provider, such as the Municipality or Eskom may disconnect services due to non-payment of those services.

For more information, please see TPN's video on Unfair Practises.

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 (for example: in the event of the property being sold or if the landlord wants to take occupation himself), then the landlord cannot cancel the lease unless the tenant breaches the lease.

See the below diagram on Early Cancellation of a Lease Agreement.