South Africa is indeed a beautiful and bountiful land of contrasts. We are blessed with vast oceans, raging rapids, diverse wildlife, blistering desert environs, impenetrable forests, towering mountain ranges. The sun bakes us in summer, the snow freezes us in winter. The South African people are equally diverse, but we all have one thing in common: we love our country. And we love to take advantage of all the outdoor activities that this gorgeous landscape has to offer. But there are risks involved with outdoor activities. Sadly it is only after tragic events occur that many people start looking at what they could have done differently. Both to avoid the tragedy, and to avoid being held liable for the tragedy. A legal battle in the Western Cape highlights this.
Up until now there have been two ways of entering into a Lease of Property Agreement: verbally or in writing.
- Verbal lease agreements are recognised in South African common law. They are effectively month-to-month leases, and have been upheld as valid by our courts.
- Written lease agreements are, of course, the norm. It’s far more difficult to argue a he-said-she-said when everything he and she said is in writing!
Things are about to change, however, in form of the Rental Housing Amendment Act* 2014. Section 5 of this Act requires that all lease agreements are in writing – and the landlord bears the onus of ensuring that a written contract of lease is signed. If a landlord fails to get the agreement of lease in writing s/he would be committing an offence and subject to a fine or two year’s imprisonment, or both. Section 5 also sets out the minimum requirements for a valid Lease Agreement:
Let’s face it – within the modern economic climate, buying your own home is but a pipe-dream for many people. Between the cost of property, escalating interest rates, the bank’s reluctance to grant finance, job insecurity and, above all, the affordability problem, it’s no surprise that so many people rent their accommodation as opposed to buying their own. One of the biggest challenges facing tenants is the subject of the deposit. It is generally the norm for landlords to require the payment of a deposit before handing over the keys. The problem comes at the end of the lease, when the tenant moves out and waits for the deposit to be repaid. And waits. And waits. And waits.
The battle of the deposit is an age-old and hotly debated topic. Tenants are loathe to pay it, and quick to demand it back when the lease ends. Landlords generally don’t lease the property without it, and are loathe, and slow, to pay it back when the property rental comes to an end.
So, when must the landlord return the deposit to the tenant? The short answer is: as soon as reasonably possible but nevertheless within 7 days after the termination of the lease, or in accordance with the Lease Agreement. (The terms of the Lease Agreement must be the same as, or more favourable than the Rental Housing Act).