While a written lease is not a legal requirement when renting residential property in South Africa, it is recommended that everything be committed to writing. This protects both the landlord and tenant should there be a dispute, says Gail Cawood, rentals manager for Knight Frank Residential SA.
If a tenant is renting a property based on a verbal agreement and the landlord decides to put a written agreement in place, unless the terms of the written agreement are the same as the verbal lease the tenant is not obliged to sign it.
When drafting a lease there is certain information which is required:
· full names of both parties and copies of their ID documents
· the postal addresses of the landlord and tenant,
· the address of the property being leased,
· the monthly amount the property is being let for,
· the proposed increase in rental if the lease is to be renewed after the current one expires,
· how the rent is to be paid each month,
· the deposit amount and what interest is earned,
· the obligations of both the landlord and the tenant, which includes maintenance, upkeep, water accounts, etc.,
· the conditions under which the lease could be cancelled, for example, if there is a lapse in payments from the tenant, what the penalties would be,
· the house rules and, if a sectional title unit, the conduct rules of the scheme,
· a list of defects, which should be drawn up at a joint inspection of the property before the tenant moves in and this should be signed by both tenant and landlord.
If, for any reason, the tenant wants to end his lease early, the cancellation clause in the agreement will be enforced and the landlord is entitled to charge a “reasonable” penalty to cover any loss he might encounter because of the lease being cancelled. Leases can also be ended early in terms of the Consumer Protection Act, giving 20 working days’ notice and a penalty can also be charged in this case, said Cawood.
If the lease has expired and the tenant wants to move out after having stayed on for a period of time, he should check the previous lease for a renewal clause that outlines how much notice he must give in such a situation. If there is no renewal clause, then the two parties have effectively renewed the previous lease, on the same terms and conditions, and for the full period stated in the original agreement. This means that the tenant will have to invoke the cancellation clause of the original lease, if there is one, in order to get out of the agreement.
“Most leases are non-problematic and there aren’t many disputes that come about during the course of a typical rental period but it is always best to anticipate problems and deal with them immediately rather than trying to sort these out after the fact. When it is one person’s word against another’s, things are very difficult to prove or sort out,” she said.