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 out interesting blog article on deposits to find out more...

https://blog.tpn.co.za/2023/03/rental-deposits-demystified-what-when.html 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.

Please also refer to the importance of performing the joint incoming and outgoing inspection here.

For more information, please see 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 make contact with the tenant to establish the reason for non-payment. You will know your tenant and be able to assess if this is a once-off situation or if the tenant routinely pays late or only partially.

In terms of the Consumer Protection Act, the landlord must demand payment in writing and give the tenant 20 business days to settle.

Should the tenant fail to settle after the demand, the landlord is entitled to cancel the lease and demand the tenant vacates 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 forcible 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.

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

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.

In terms of the Rental Housing Act, the tenant and landlord or Property Practitioner 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.

If the landlord or Property Practitioner does not perform both the incoming and outgoing inspection, 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.

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

Refer to sections on incoming and outgoing inspection and interest earned on the deposit.

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.

We explain a bit more about deposits in an interesting article - https://blog.tpn.co.za/2023/03/rental-deposits-demystified-what-when.html or watch a video about the Rental Housing Act where we explain deposits

If the co-owners are married in community of property, spousal consent is required as one spouse cannot burden the joint estate without consent of the other.

If the co-owners married out of community of property both must sign or failing that authorise the other to sign in their stead, Joint ownership requires joint consent.

The essence of a lease agreement is that it is a legally binding contract. A lease agreement is therefore subject to all of the laws that pertain to contracts in general.

 The law clearly states that the obligations of the parties to a contract will not be extinguished by the death of either party, unless:

·         the contract contains a clause that specifically states that the contract will terminate upon the death of one or both parties; or

·         the will of the deceased party specifically states that the contract will terminate upon the death of the party in question.  

In most cases, the rights and obligations of the party in question will pass on to the executor of the deceased’s estate. This position was confirmed by the Courts in the well-known case of Lorentz v Melle and Others 1978 3 SA 1044 (T) at 1058C.

This means that if a tenant or a landlord dies, the lease agreement will not automatically terminate unless the lease agreement contains a clause that specifically provides for such termination. In all other instances, the executor will take over the obligations of the deceased party and should be the first point of contact for the other party to the agreement. The rule that applies to all contracts applies to a lease agreement in that the rights and obligations arising from the lease will pass to the heir, as long as the heir accepts the inheritance.

Our recommendation is:

• ID Verification 
• The ID verification will indicate for you if the name and surname match the ID number before you proceed with the reset of the enquiries.
• You will be alerted to the possibility of deceased or fraudulent ID documents. The system will also alert you to an input error - e.g. entering the name and surname back to front, mismatching a husband and wife's details, or entering the tenants ID number with the landlords details. (All common mistakes)
• ID Biometric
• The ID Biometric check is the ultimate in fraud prevention as an SMS is generated to the individual you are checking which asks them to perform a "live" selfie, this selfie then verifies using biometrics against the latest photo on file for the individual.
• Ensuring the person you are checking is who they say they are. 
• RentCheck
• The RentCheck enquiry is the ultimate credit check to perform on a tenant - it includes the TPN and TransUnion checks and includes Rental Payment Profile, Judgements, Defaults and Notices.
• In order to access the RentCheck enquiry, the Consumer is required to load a minimum of 1 (One) month's Payment Profile Information onto the Database;

The Consumer acknowledges and accepts that ongoing access to RentCheck shall be dependent on Rental Payment Profile information being updated on a monthly basis and that TPN may, in its sole discretion, suspend the Consumer's access to RentCheck at any time should the Consumer fail to timeously provide such information to TPN.

• If the RentCheck enquiry is not available
• Contact TPN's data team on 0861 876 000 to find out how you can access more information at discounted rates.
• It is then recommended to select the TPN, TransUnion, and Experian Individual Enquiries - this will show you any Rental Payment Profile as well as any judgements, defaults and/or notices that are on the applicant's credit profile.
• It is recommended to select all three bureaux reports as each bureau has different client bases. TPN has found that unless all three enquiries are performed, the TPN member runs the risk of not seeing defaults listed with the other credit bureaux.