A Property24 reader asks
My landlord added a clause to my rental lease: “The lessee has five days to report any defects and damages caused by normal wear and tear during the cause of this lease agreement. Failure to report on such incidents will result in the liability to be incurred by the lessee. Defects and damages caused through negligence of the lessee will result in the liability incurred by the lessee.”
My landlord added a clause to my rental lease: “The lessee has five days to report any defects and damages caused by normal wear and tear during the cause of this lease agreement.
Failure to report on such incidents will result in the liability to be incurred by the lessee. Defects and damages caused through negligence of the lessee will result in the liability incurred by the lessee.”
In an email, the landlord state that the clause has been included because the previous tenant only reported the shower broken upon leaving three months late. It further said as a result, the shower are had significant damage costing R5 000 to repair.
I moved into the property on the first of the month and reported the snag list on the 20th of that month. The landlord refuses to accept it despite the fact that I had advised her of my work schedule hence the delay in sending through the snag list.
What are my rights and can she claim next September when my lease expires that I damaged everything that she brings to my attention? I have been told that this contravenes the Consumer Protection Act and I want to move out within a month’s notice as she is being so unreasonable. She has also sent me very rude and hostile emails.
Marlon Shevelew, specialist rental/eviction/sectional title attorney and general litigation attorney at Marlon Shevelew and Associates, Attorneys at Law responds:
This clause is unlawful, unethical and unenforceable. I provide herein below an excerpt from chapter 3 of the Rental Housing Act which is the statute that legislates Landlords and tenants in residential housing matters.
Rental Housing Act, 1999 Chapter 3 Relations between Tenants and Landlords Provisions pertaining to leases:
3) A lease will be deemed to include terms, enforceable in a competent court to the effect that:
- the landlord must furnish the tenant with a written receipt for all payments received by the landlord from the tenant.
- such receipt must be dated and clearly indicate the address, including the street number and further description, if necessary of a dwelling in respect of which payment is made, and whether payment has been made for rental, arrears, deposit or otherwise, and specify the period for which payment is made: Provided that a Tribunal may, in exceptional cases, and on application by a landlord, exempt the landlord from providing the information contemplated in this paragraph.
- the landlord may require a tenant, before moving into the dwelling, to pay a deposit which, at the time, may not exceed an amount equivalent to an amount specified in the agreement or otherwise agreed to between parties.
- the deposit contemplated above must be invested by the landlord in an interest-bearing account with a financial institution and the landlord must pay the tenant such interest at the rate applicable to a savings account with that financial institution. The tenant may during the period of the lease request the landlord to provide him or her with written proof in respect of interest accrued on such deposit, and the landlord must provide such proof on request: Provided that where the landlord is a registered estate agent as provided for in the Estate Agency Affairs Act, 1976 (Act No. 112 of 1976), the deposit and any interest thereon shall be dealt with in accordance with the provisions of that Act.
- the tenant and the landlord must jointly, before the tenant moves into the dwelling, inspect the dwelling to ascertain the existence or not of any defects or damage therein with a view to determining the landlord’s responsibility for rectifying any defects or damage or with a view to registering such defects or damage as provided for in subsection (7).
- at the expiration of the lease, the landlord and tenant must arrange a joint inspection of the dwelling at a mutually convenient time to take place within a period of three days prior to such expiration with a view to ascertaining if there was any damage caused to the dwelling during the tenant’s occupation thereof.
- on the expiration of the lease, the landlord may apply such deposit and interest towards the payment of all amounts for which the tenant is liable under the said lease. This includes the reasonable cost of repairing damage to the dwelling during the lease period and the cost of replacing lost keys and the balance of the deposit and interest, if any, must then be refunded to the tenant by the landlord not later than 14 days of restoration of the dwelling to the landlord.
- the relevant receipts which indicate the costs which the landlord incurred as contemplated must be available to the tenant for inspection as proof of such costs incurred by the landlord.
- should no amounts be due and owing to the landlord in terms of the lease, the deposit, together with the accrued interest in respect thereof, must be refunded by the landlord to the tenant, without any deduction or set-off, within seven days of expiration of the lease.
- failure by the landlord to inspect the dwelling in the presence of the tenant as contemplated is deemed to be an acknowledgement by the landlord that the dwelling is in a good and proper state of repair. The landlord will have no further claim against the tenant who must then be refunded, in terms of this subsection, the full deposit plus interest by the landlord.
- should the tenant fail to respond to the landlord’s request for an inspection as contemplated in paragraph (f), the landlord must, on expiration of the lease, inspect the dwelling within seven days from such expiration in order to assess any damages or loss which occurred during the tenancy.
- the landlord may in the circumstances contemplated above without detracting from any other right or remedy of the landlord, deduct from the tenant’s deposit and interest the reasonable cost of repairing damage to the dwelling and the cost of replacing lost keys.
- the balance of the deposit and interest, if any, after deduction of the amounts contemplated in paragraph (1), must be refunded to the tenant by the landlord not later than 21 days after expiration of the lease.
The balance of the deposit and interest, if any, after deduction of the amounts contemplated in paragraph (1), must be refunded to the tenant by the landlord not later than 21 days after expiration of the lease.
- the relevant receipts which indicate the costs which the landlord incurred, as contemplated in paragraph (1), must be available to the tenant for inspection as proof of such costs incurred by the landlord.
- should the tenant vacate the dwelling before expiration of the lease, without notice to the landlord, the lease is deemed to have expired on the date that the landlord established that the tenant had vacated the dwelling but in such event the landlord retains all his or her rights arising from the tenant’s breach of the lease.
- any costs in relation to contract of lease shall only be payable by the tenant upon proof of factual expenditure by the landlord.
4) The standard provisions referred to in (3) above may not be waived by the tenant or the landlord.
5) If on the expiration of the lease the tenant remains in the dwelling with the express or tacit consent of the landlord, the parties are deemed in the absence of a further written lease, to have entered into a periodic lease, on the same terms and conditions as the expired lease, except that at least one month’s written notice must be given of the intention by either party to terminate the lease.
6) A lease must include the following information:
a) The names of the tenant and the landlord and their addresses in the Republic for purposes of formal communication.
b) the description of the dwelling which is the subject of the lease
c) the amount of rental of the dwelling and reasonable escalation, if any, to be paid in terms of the lease
d) if rentals are not paid on a monthly basis, then the frequency of rental payments
e) the amount of the deposit, if any
f) the lease period, or, if there is no lease period determined, the notice period requested for termination of the lease
g) obligations of the tenant and the landlord, which must not detract from the provisions of subsection (3) or the regulations relating to unfair practice
h) the amount of the rental, and any other charges payable in addition to the rental in respect of the property.
7) A list of defects registered in terms of subsection 3 must be attached an annexure to the lease as contemplated.
8) A copy of any House Rules applicable to a dwelling must be attached as an annexure to the lease.
He adds that as for the Consumer Protection Act, it will depend on when the lease was signed and whether the landlord is rendering services in the ordinary course of her business.
Irrespective, the tenant certainly has rights in terms of the Rental Housing Act to cancel if the landlord persists in her ridiculous claims and actions.
Readers' Comments Have a comment about this article? Email us now.
I think the crux of this matter is whether the clause was an integral part of the original lease, or was added afterwards.Nowhere is this clear: The writer simply states "My landlord added a clause to my rental lease"
When was this clause added - after the lease was signed?
As an estate agent and occasional landlord I don't believe there is anything unfair about this clause. Five days is a reasonable period (although seven is the norm) in which to report defects. If the tenant was unable to do this because of his work schedule he should have been upfront with the landlord and asked her for an extension. People often show little regard for the terms of a contract and I think this is a case in point.
I can well understand the landlord's ire at receiving a defects list (the shower) three months after the previous tenant has vacated, and her need to protect herself from future carelessness and/or damage by tenants. Unless I have missed the point entirely.......? Mr Shevelew's reply is so wordy that it's difficult to find clarity in it. - Helaine
I agree with Marlon on this one. Such a clause is unenforceable. All Marlon has done is quote directly from the rental housing act so how can the reader state that his response is “wordy” and discredit him? 20 days should be a reasonable time to report issues if a joint inspection was not offered by the landlord/landlady prior to occupation. - Anonymous
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