Take heed of tenants’ legal protection

Jul 02 2013 19:16
Cape Town – The most important thing that landlords should be aware of when it comes to the implications of the Consumer Protection Act (CPA) on rental property, is that the act will always ensure that the tenant has the greatest protection, according to Marlon Shevelew, director of Marlon Shevelew and Associates.

The CPA was signed into law in 2009 and has empowered the consumer and changed the way that businesses deal with their customers – including the relationship between landlords and tenants.

“Section 4(4) of the CPA requires any contract, or document (a lease) prepared by a supplier (a landlord) to be interpreted to the benefit of the consumer (the tenant). This means that tenants will be afforded far more leeway when it comes to their grievances,” said Shevelew.
The landlord’s obligations to the tenant are prescribed by the Rental Housing Act (RHA), which states that the landlord must provide the tenant with a written receipt for all payments received.

In addition, the landlord must conduct incoming and outgoing inspections of the property in the presence of the tenant in order to determine what damages there are to the property.

The RHA dictates that, when the lease expires, the landlord may deduct the cost of repairing any damages from the tenant’s deposit, provided that the tenant is liable for such damages in terms of the lease.

The remainder of the deposit, plus interest, must then be refunded to the tenant by no later than twenty one days after expiry of the lease.

It is important to note that, according to the RHA, if the landlord does not conduct the outgoing inspection in the presence of the tenant, it is deemed an acknowledgement that the property is in a proper state of repair, and the landlord will be responsible for refunding the tenant’s deposit in full, plus any interest.
A recent research survey undertaken by Torus Capital indicated that incoming and outgoing inspections account for 72% of the common administrative tasks landlords do, followed by maintenance (62%), vetting of potential tenants (40%), lease renewals (34%), legal procedures (31%), evictions (29%), and deposit disputes (24%).
As a result of the time-consuming nature of these tasks, the survey results showed that 27% of landlords do not always vet potential tenants and only 51% of landlords frequently conduct incoming and outgoing inspections.
According to Shevelew, failing to do any of the above can have serious consequences in the light of the CPA – particularly as a lease will always be legally interpreted to the benefit of the tenant and will clearly be a dereliction of the duty of the landlord towards his tenant.
“Vetting allows for a landlord to be fairly discriminatory as to the ability of the tenant to pay their rental,” he comments.
“Thorough incoming and outgoing inspections are essential actions that allow for the deposit to be utilised to cater for any damages to the property during the currency of the lease – except for fair wear and tear,” he added.

As the CPA affords the tenant such comprehensive protection, it is in the interests of the landlord not only to ensure that they fulfil their obligations to the tenant comprehensively, but also to ensure their own protection.

- Fin24

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