ANSWERS TO QUESTIONS IN RENTNEWS (SEPTEMBER 2017)
- Is a lease agreement signed by all parties necessary for renting of a property?
Whilst it is preferable to have a lease agreement signed by both a landlord and tenant, in terms of the Rental Housing Act Chapter 3 Clause 5 (1) a verbal lease is legally acceptable.
- Is a lease valid if not signed by both parties?
Should a lease agreement not be signed by either or both parties and a tenant has moved into a property, is paying rent and the landlord is accepting the rent, the courts take the intention of both parties to rent the property as being a valid agreement.
- Can rental be increased in the middle of a lease agreement?
No - generally it cannot unless there is something in the lease agreement stating otherwise. Some lease agreements have a clause stating that if the rates or levy is increased during the period of the lease, the landlord will be entitled to increase the rent by the percentage of increase. If a landlord intends increasing the rent after the initial period of the lease this should be stated in the lease agreement.
- Can rental be increased to equal market related rentals?
No, the Rental Tribunal will not sanction more than 10/11%. Currently it is important to note that rental increases in the Western Cape are 9.5% whilst the national average is 4.4%.
These increases apply to existing tenants and not to new tenants.
- Can a tenant be locked out? Can his possessions be attached? If so, how?
In terms of Unfair Practices Regulations and common law a tenant cannot be locked out for non payment of rent, services or any other breach of a lease agreement. Procedure must be followed in that the tenant should be put in breach and warned that there will be legal consequences if the breach is not corrected. A good paper trail is essential in these cases and becomes relevant should an eviction be sought.
A tenant’s possessions can be attached once an interdict has been obtained either through a Rental Tribunal or a magistrate’s court. A sheriff will value the possessions and remove them should a tenant be unable to pay whatever has been legally accepted is owed.
- Can electricity or water be cut off during a tenancy? Why or why not?
The Unfair Practices Regulations disallow the termination of any services even if the tenant has not paid for what has been consumed. It is thus imperative that the landlord/agent is fully aware on a monthly basis if a tenant has paid for these services and if not, puts the tenant into breach immediately.
To avoid ongoing problems it has become imperative that prepaid meters for electricity and water are installed into rented properties. Even then some tenants have bypassed these meters and used services without paying for them. Be vigilant!!
- What effect does a ruling from a Rental Tribunal have?
It is the same as a ruling from a magistrate’s court. Should one of the parties want to appeal against the ruling they would have to go to the high court with an attorney.
Should the ‘guilty’ party not follow the ruling within the given amount of days; the other party can return to the Rental Tribunal and report this to an officer. A recommendation will be relayed to the magistrate’s court for a warrant of arrest.
- Under what circumstances is a landlord able to retain a damages deposit?
- If a tenant has not attended a joint outgoing inspection on termination of a lease
- If a tenant has damaged a property which can be proved by clear inspections and photographs
- If there are outstanding services, penalties, rent, damages or anything else which is directly related
- All the above have to be proved by a relevant paper trail
- How can you as a rental agent assist an attorney to evict a non paying tenant?
By conducting a careful paper trail i.e. alerting your tenant on every occasion by following written procedure so that the courts have proof of why your tenant has to be evicted. Many eviction cases are postponed due to the lack of certain necessary documents.
Either attend our next seminar on Evictions or view the training module on our website.
- In terms of the Rental Housing Act is it necessary for a landlord to attend the ingoing and outgoing inspections with a tenant?
Although the rental act states ‘landlord’ in every instance, a representative such as a rental agent or any other mandated person is legally acceptable as long as the person is aware of the details and recording of the inspection. Recently a number of inspection firms have been established who conduct these inspections, and they are fully aware of the legal aspect of the importance of recording relevant details.