The December/January period is not only synonymous with holiday songs and (hopefully) some time off work, but also with the expiry or commencement of a lease agreement.
Unfortunately, this is where the repayment of your rental deposit – which now becomes payable to the new landlord – might become an issue. Talk about dampening that festive spirit!
So how does one approach a situation where your landlord refuses to pay back your deposit?
Firstly, a pre- and post-occupation inspection of the rental space must be completed before and after you move in and out.
The pre-inspection entails you and the landlord entering the premises together and recording any issues you may find. It is a good idea to take photos of the problems and send same to the lessor and/or the estate agent via e-mail before you move in. This should assist in addressing questions that may arise towards the expiry of the lease agreement, such as ‘was that stain on the carpet always there?’
It is important to keep in mind that the moving-in report is a crucial step and serves as a useful safeguard. So yes, it might be difficult to focus with all the boxes waiting to be delivered and unpacked, but this is not a step to brush over or take lightly. Laser focus is required as it may save you in the long run!
Fast forward a year or two or three and we enter the post-inspection stage. When it comes to the moving-out report, the Rental Housing Act 50 of 1999 stipulates that “the landlord and tenant must arrange a joint inspection of the dwelling at a mutually convenient time to take place within a period of three days prior to such expiration [of the lease]”.
It is practice for the landlord to arrange the exit inspection of the property. Note that the landlord/ lessor cannot claim from the tenant/ lessee’s deposit without conducting this inspection first. The Rental Housing Act states that the tenant has the right not to have their home or property searched by the landlord without notice, and thus, the landlord must give reasonable notice for inspection 3 days before the lease ends.
During this post-inspection, the landlord will keep an eye open for damage caused to the property, other than reasonable wear and tear. For example, the landlord cannot expect spotless walls if the walls were painted more than three years ago.
Damage/ expenses that may be deducted from the deposit include the replacement of lost keys or remotes, any outstanding utility bills, as well as repairs. The tenant is however entitled to inspect the receipts for any repairs carried out by the landlord or items purchased (replacement keys, etc.). In the case where no claim for damages is made by the landlord, and the tenant is debt free in terms of charges and rent, the deposit must be refunded within seven days following the lease expiration.
There are however instances where the landlord refuses to refund a deposit or what is left after reasonable deductions. This is where the tenant may approach the Rental Housing Tribunal in his/ her area. The Tribunal provides free services to settle disputes and can make a binding order deemed to be an order of the Magistrate’s Court. You furthermore do not require legal assistance or representation and would start the process by completing a few complaint forms (available online as well).
Take with you/ keep copies of all and any receipts, bank statements, correspondence between yourself and the lessor such as the lease agreement, text messages and of course, crucially, that very important e-mail you sent with photos of the existing damage that you took during the pre-inspection.
Written by Jolané van der Walt-Nieuwoudt (LLB) (LLM)