Tenants in South Africa currently pay anywhere between one and three months’ rent as a damages deposit, but are often unsure what they need to do to get it back when their lease ends.
Schaefer says it is worth noting that the Rental Housing Act specifically excludes tenants from any liability for fair wear-and-tear, which is defined as deterioration or depreciation in the value of an item through ordinary and reasonable use.“Although deposits are often used to cover rental defaults or unpaid utility bills, their primary purpose is to protect landlords against damage to the property,” says Andrew Schaefer, MD of national property management company Trafalgar.
“Tenants need to be aware of this, and since they may have quite a large sum of money at stake, they also need to know how to avoid being penalised for damage that may have been done by others, or may just be due to wear-and-tear, which is the landlord’s own responsibility.”
Most importantly, he says they will need a clear visual record of what the property looked like before they moved in, and the best way to do this is to inspect the property together with the landlord or agent when it is still empty and take their own time and date stamped photos or video of every room, and especially of any existing damage that they can see.
“If you are renting through a professional letting company, the agent will probably be taking photos during this in-going inspection anyway, but you should insist that yours are also attached to the lease agreement and signed by the landlord, so that all parties are on the same page when it comes to the move-in condition of the property,” says Schaefer.
“This will really help to avoid disputes at the end of the lease, when a similar set of photos or videos taken as you move out will quickly reveal whether the property is still very much in the same condition, or whether there has been any serious damage done that you need to pay for.”
He says it is worth noting that the Rental Housing Act specifically excludes tenants from any liability for fair wear-and-tear, which is defined as deterioration or depreciation in the value of an item through ordinary and reasonable use.
“There is, of course, still some potential for disagreement as landlord and tenant may not see eye-to-eye about the difference between damage and wear-and-tear, but generally speaking, landlords need to accept that carpets and curtains do get worn, doors and floors do get scuffed and paint does fade, and that they cannot hold their tenants liable for that.”
On the other hand, Schaefer says tenants will improve their chances of getting their deposit back quickly by taking the initiative to steam clean carpets ahead of the move-out inspection, for example, or patching any holes in the walls caused by removing artwork or a wall-mounted TV, and repainting those walls in the original colour.
Other things that tenants can do to ensure a smooth departure with their deposit intact include giving notice in plenty of time and in writing, so that the landlord is aware as soon as possible of their intention to leave and has the best chance of finding a new tenant before they go
“A vacant unit is one that is costing the landlord money, and the more you can reduce the possibility of vacancy, the better,” he says
In addition, Schaefer says tenants should try to be accommodating when the landlord or agent wants to show the unit to potential new tenants.
“Again, the easier you make it for the unit to be re-let, the less resistant your landlord is likely to feel about returning your deposit, and the more likely you are to get a good rental reference.”
As to the timing of any deposit refund, Schaefer says the law in SA provides that when a joint outgoing inspection has taken place and there is no amount owing to the landlord for either damages or arrears, the full deposit must be refunded within seven days.
If a joint inspection has taken place and there is an amount owing to the landlord, the landlord has 14 days to obtain quotes and establish what it would cost to repair any damages, and refund the balance of the deposit to the tenant.
“It is also important for tenants to be aware that if they refuse to attend a joint inspection, they can be held liable for any and all damages to the premises, as well as any arrears,” says Schaefer.
“In such cases the landlord has 21 days to assess the damages and to refund the balance of the deposit if applicable. But if there is a shortfall, the landlord may also take legal action to recover it and the tenant would then also be responsible for those legal costs.”
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