Your rights when you rent a place to stay

Many consumers opt to rent a place to stay, but few people know what their rights are as tenants. Knowing your rights upfront before signing a rental agreement could help you sidestep many problems.

While most of us will focus on how much we need to pay per month, it is also important to know what your rights are as well as the rights of your landlord to avoid conflict or problems that are difficult to resolve.

The most important thing when renting a place is to know what you are letting yourself into. According to the Western Cape Department of Human Settlements, you as a tenant have the right to refuse to allow yourself or your accommodation to be searched, that the landlord may not seize your property without a court order and that the privacy of your communication must be respected.

Your landlord, in turn, has the right to require you to pay your rent regularly, recover the money you owe them after a court order has been issued and terminate your lease on grounds that are not considered unfair and as specified in the lease agreement.

It is also your duty to ensure that the landlord gets the property back in good condition when your lease ends, while they must also be able to claim compensation for damages or improvements from you.

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Your lease agreement

According to the department, a verbal agreement is just as binding as a written lease, but if you have to sign a lease to move in and you refuse to sign it, there is no agreement and you cannot legally move in.

If you rented a place to stay for a time on the basis of a verbal agreement and your landlord asks you to sign a lease, you do not need to sign it if the terms are not the same. The landlord will then have to negotiate new terms with you.

However, it is better to have the agreement in writing to outline the terms and conditions. The information on the agreement should include your name, the name of the landlord, your mailing address, the mailing address of the landlord, the address of the property being rented, the rent amount and the amount by which the rent will increase, such as 10% when you renew the agreement and also when the rent will increase.

If the agreement does not specify an amount or date for an increase, the landlord must negotiate with you about the increase. Neither you nor the landlord may unilaterally change the original agreement.

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Lease agreement should include rent and deposit amounts

The lease agreement should indicate how often you have to pay rent, such as monthly, and how much the deposit is. It should also include your and your landlord’s obligations, such as who is responsible for maintenance and who pays the bills for water, electricity and other rates.

Usually, the tenant pays for charges related to consumption, such as water and electricity and the landlord pays for charges related to the property, such as property taxes.

In addition, the agreement should specify when you or the landlord can give notice to cancel the agreement, such as a lack of maintenance or if you do not pay the rent on time.

Both of you must also sign the house rules and it must be attached to the lease. A list of defects, drawn up during a joint inspection when you move in and which you both sign, must also be attached to the lease.

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What about the deposit?

You must pay the deposit if the landlord requires it and it is stipulated in the lease. The landlord or their agent must keep your deposit in an interest-bearing account or trust account, in the case of an agent, for the time you live there.

When you move out, the landlord must repay the full deposit amount, plus the interest earned, after deducting the cost of any damage you caused and any money you still owe under the lease.

What if I cannot move in on the particular date?

In this case, the landlord commits breach of contract and you can therefore cancel the contract. It also means that you have suffered damage and if you had to incur costs to get another place to stay, you can claim this from the landlord.

If you cannot move in until later and still want to stay there, negotiate with the landlord that you pay pro rata less rent for the first month.

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When you pay your rent

It is your right in terms of the Housing Rental Act to insist on a receipt for all payments if your landlord does not automatically provide one. A receipt should include the date of issue, address of the property, reason for the payment (whether rent, rent arrears, or a deposit) and the month you are paying for.

Maintenance of the property

According to the department, maintenance depends on what your lease says. The landlord is usually responsible for maintaining the exterior of the property and the tenant for the interior.

Can the landlord enter the property whenever they want?

Your landlord has the right to enter the property to conduct routine inspections, but only after notifying you well in advance to arrange a time that suits you, the department says, but you do not have the right to deny the landlord reasonable access.

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Can landlord seize your belongings if you fall behind on rent?

The department says the landlord must first get a court order for the sheriff of the court to seize your property for the amount you owe. If your landlord seizes your belongings without a court order, it is theft and you must contact the police and lodge a complaint with the Rental Housing Tribunal in your province.

Can the landlord lock you out?

The simple answer is no. The landlord must also give you a duplicate key immediately if he changes the locks due to wear and tear or another reasonable cause.

If you want to move out early

Ending your lease early will depend on the cancellation clause in your agreement. If there is no clause, you can just terminate your lease early without committing breach of contract or if your landlord agrees to do so.

You can also end your lease early if your landlord has substantially breached the contract, such as failing to maintain the exterior of the property as agreed in the lease and making it impossible for you to stay there.

You can also terminate the lease early in terms of section 14 of the Consumer Protection Act, which allows you to cancel a fixed lease early by giving 20 working days’ notice, but then the landlord can impose a reasonable cancellation penalty – not to punish you, but to cover the reasonable costs of finding another tenant.

If your lease has already expired and there is no renewal clause in the lease agreement, you and the landlord 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 you must invoke the cancellation clause of the original lease, if there is one, to get out of the agreement. Without a cancellation clause, the best way to get out of the lease is to give the landlord one month’s notice in writing before the lease expires.

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What if the landlord refuses to refund your deposit?

A security deposit is charged to cover any money you may still owe your landlord, and/or the cost of repairs for any damage to the property, which exceeds fair wear and tear, that you have caused. If your landlord keeps your deposit and cannot provide proof of the costs they incurred, you must lodge a complaint with the Rental Housing Tribunal.

You can prevent this problem by inspecting the property together when you move in and listing any existing defects in writing. Both of you must sign this document and it must be attached to the lease agreement.

When you move out, inspect the property together again and compare the new list of defects with the list made when you moved in. The landlord may also give you the opportunity to repair the damage yourself, or you may agree that the landlord will do so. If the landlord makes the repairs, you have the right to see all receipts for repairs paid from the deposit.

If repairs cost less than the deposit plus the interest accrued, the landlord will have to pay you the difference.

Rental Housing Tribunal

Each province has a Rental Housing Tribunal in its Department of Human Settlements where you can complain about unfair treatment by your landlord.