Rentals, whether formal or backyard, affect our lives in one way or another. We may either be renting homes to live in or are considering or engaging in renting property to third parties for extra income. It is in our best interests to have a sound grasp of the implications of the lease agreement.

Lease agreements

Legislation regulates the leasing of domestic property. It is important to understand that leases create rights and duties for both the landlord and the tenant.

Verbal or written leases

At this point in time, a lease may be verbal but the law does impose an obligation on the landlord to furnish a tenant with a written lease when requested to do so by the tenant. However, the most sensible route for a tenant is to ensure that he/she obtains a copy of the signed lease upfront.

An amendment to the law is in the pipeline that will require leases to be in writing. The obligation for this will rest with the landlord. In terms of the amendment, a pro-forma lease will be made available in all the official languages setting out the minimum legal requirements and which may be used as a guideline. There are very sound reasons for putting a lease in writing.

Disputes

Should a dispute arise, as very often does in these types of contracts, there should be a document that clearly sets out the terms. Often parties will lie about their version of the terms of the lease and it can be very difficult for courts or tribunals to determine which version is truthful.

Inspection of property

In terms of the legislation, the landlord and the tenant must jointly inspect the property prior to signing the lease, to ascertain and record the existence of any existing defects or damage to the property. This is obviously a very prudent action for both parties as it will set out the landlord’s area of responsibility for rectifying the defects or damage and it establishes existing defects or damage which cannot be attributed to the new tenant at a later date. The defects and damage must be put in writing and annexed to the lease. Taking photographs of existing defects and damage is also a good idea.

Contents of a written lease

A written lease must contain the following:

    • The names and South African addresses of the tenant and the landlord
    • A description of the property
    • The lease period (eg one year). If no fixed period is stated, the notice period required to terminate the lease must be stated (eg one month’s notice)
    • The amount of rent payable, and the amount by which it may reasonably increase during the lease period
    • Any other charges payable in addition to the rent
    • How often rent is to be paid if other than monthly
    • The amount of the deposit, if one is required
    • Duties of both the tenant and the landlord which may not conflict with the law.

Should the landlord undertake to fix or attend to something relating to the property, include this as a term of the lease, stipulating a time period for this to be done in.

Conclusion

Always ensure that you have a written lease, which you have carefully read, that you clearly understand and agree with. If a potential tenant is unhappy about a term of the lease, raise the issue with the landlord prior to signing and discuss an amendment or a compromise which must then be reflected in the lease. These simple actions will potentially save both the landlord and tenant a lot of pain, time and money in the long term.