Lease Agreements: What rights do tenants have?

Renting property, like death and taxes, is a certainty for all of us, at some stage in our lives.

The obvious problem that this creates is that the property you are living in is not yours – it’s your landlords.  So what happens when things go wrong? Who is to blame and who has to “step up” in certain circumstances? 

Most of the times it’s confusing and no one knows where they stand, and other times its downright daunting bringing up issues that need to be dealt with.

So, what are your rights when you are a tenant?  We are going to tell you…

Do I need a written lease agreement?

While it is not essential to have a written lease agreement, it obviously makes it easier to ensure clarity and avoid hassles and disputes down the line.

This does not mean that a verbal lease is not valid – it definitely is, however where there is a dispute as to the terms of your arrangement, it will be difficult to prove those in court if necessary.

What happens when the landlord sells the property I live in?

What a lot of people don’t know, and what some landlords sneakily don’t tell you, is that despite the fact that the owner of the house changes, you are still able to live in the property in terms of your existing lease agreement.

In our law there is a common law rule called “huur gaat voorkoop”.  The direct translation is “lease before sale”.  This means that even if the owner of the property you live in changes, your lease will survive the sale, and the new owner actually steps into the so-called “shoes” of the seller and is bound by your lease agreement.

What happens when something breaks?

Like most situations, depending what your lease agreement says, there maybe many different possibilities.

Usually lease agreements will state that the lessee or tenant is required to maintain the property and return it in the same condition it was at occupation, fair wear and tear excepted.  

That means that the tenant will be required to ‘look after’ the property reasonably well and ensure that where something breaks due to tenant use or neglect, that it is repaired or replaced.  This will include replacing your own light bulbs, replacing windows that you may have broken, ensuring that the interior walls and carpets are not damaged, among others.

In the event that items are damaged, destroyed or soiled to the point that it requires a professional to repair or clean, those costs will be deducted from your deposit.

The best way to ensure that the property is kept in reasonable shape, is by making a snag list of items that were damaged or soiled when you moved in.  That way you and the landlord will accept which items you will not be liable for when you vacate.

The Exception to the Rule

However – there is definitely an exception… Where something like the geyser bursts or a leak occurs in the roof, the landlord is required to repair/replace those items.  Generally most landlords have insurance for these situations, and because it is not as a result of the tenant’s use and/or neglect, the landlord will be obliged to maintain the structural integrity of the property as well as the good working order of items such as a geyser.

Can I use my deposit as my last month’s rental?

No, you may not tell your landlord to keep your deposit as payment for your final month’s rental.

Usually in terms of the lease agreement as well as the Rental Housing Act, the landlord is entitled to prompt payment of rental and other charges in terms of the lease agreement.

After the deposit has been applied to damages or repairs as discussed above, the landlord is required to refund the balance of the deposit by no later than 14 days after you have vacated the property.

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