Tips For Buyers
Renting a property has pros and cons - and, contrary to what many people think, doesn't absolve you of all responsibility. Tenants are obliged to pay rent regularly and timeously, and also to maintain their homes to a certain degree. On the other hand, legislation now protects you and places the onus on landlords to fulfil their obligations.
As soon as you become a tenant by moving into rented property, you enter into an oral or a written lease agreement with the owner of the property. In terms of the lease (which is, in fact, a contracts governing letting and hiring) the property owner (the lessor) makes a binding agreement to give you (the lessee) the temporary use and enjoyment of the property in return for the payment of rent, which in the majority of instances is monetary.
The only exception to this form of payment may occur when agricultural property is leased and the parties agree that the rent may be a specified quantity or a fixed proportion of produce - such as wheat or dairy products - from that property.
Before you move into your rented premises, you will probably have to pay the costs of drawing up the lease, as well as the stamp duty on it, one month's rent in advance, a deposit - in most cases equal to one month's rent - as security against any damage you might cause and a deposit towards the connection of water, electricity or gas.
If you are presented with a written lease, read it carefully before you sign it - and do not hesitate to consult your attorney about any provision that may seem ambiguous or not in your interests.
Sometimes an advertisement for a flat tolet will contain a proviso, such as: 'carpets and/or curtains to be taken over, R500'.
Be careful when answering such an advertisement. It usually means that the person advertising the flat is the tenant - not the property owner - and he or she wants to recoup some of the expenses incurred through making improvements to the flat during the period of occupation. This would probably apply especially to older premises.
When you move into a flat, your lease agreement is a contract with the owner for the rental of the property and you are therefore under no obligation to the previous tenant to buy carpets, curtains or any other fixtures or moveables.
The prime duty of a property owner is to give a tenant occupation and control of the property. Furthermore, the owner has to maintain the property in its proper condition, subject to fair wear and tear (defined as the 'unavoidable consequence of the passage of time'). The owner must also ensure that normal running repairs to the property are carried out.
A second important duty of the owner is a guarantee that the tenant will enjoy the undisturbed use and enjoyment of the property for the duration of the lease. This duty has three facets:
The property owner must not unlawfully interfere with the tenant's rights although he or she is entitled, in certain circumstances, to interfere lawfully if, for instance, the tenant has to vacate the premises temporarily to allow necessary repairs to be done. Although an owner also has a right of inspection, this right must be exercised in a reasonable manner.
The owner must protect the tenant against being disturbed by 'third parties' who may claim a stronger right to the property than the tenant. For example, if you sub-let property from a lessee whose lease is invalid (perhaps because it has not been drawn up properly), you could be evicted by the original owner of the property. If this happens, the person who sub-let the property to you is obliged to protect you from being evicted.
If you were evicted (and in most such cases you would be), you would be entitled to sue the person who sub-let the property to you for breach of contract, because he or she agreed to let you have the use of the property - and obviously, if evicted, you would not have that use.
Note, however, that as soon as the original owner (or another 'third party' with a stronger claim to the property than yourself) approaches you, you must notify the person who sub-let the property to you to enable him or her to take timely action in your defence.
At the same time you must vigorously resist the third party's claim.
The owner is not bound to protect you against a disturbance of your occupation by a superior force, such as war or an act of God. Usually in a written agreement of lease, total or partial destruction of the premises allows you a rebate in rental and the courts have followed this line.
As a tenant, you also have duties towards the property owner:
Your main duty is to pay the rent. You are released from this obligation only if the owner breaks the agreement or, in certain circumstances, your possession of the property is disturbed by superior forces (such as war or an act of God). The date on which rent must be paid is usually specified in the lease. In the absence of such a provision, the general rule is that rent is payable in arrears - either upon expiry of the lease, or, in the case of periodic leases, on expiry of each period (one month if rent is paid monthly).
You must use the property for the purpose for which it was let. If this is not specified in the agreement, you may use it for its 'natural function', as a flat or dwelling. You must always use the leased property in a reasonable manner.
When you vacate the property, it must be in the same condition as when you took possession of it, allowing for reasonable wear and tear. If the property is damaged by your guests, servants or children, you are held responsible.
If the flat or house you are renting is sold by the owner, the protection that you are given against possible eviction will depend on the type of lease you have signed. In so-called short leases (under 10 years) the rule of 'huur gaat voor koop' applies - that is, the contract of lease takes precedence over the contract of sale.
For example, if you have recently agreed, either in writing or verbally, to a year's lease, you will be protected until that lease has expired unless, of course, the lease contains a clause specifying a period of notice.
Obviously, if you do not pay your rent, you will have broken the terms of the lease and will have to vacate the property. Furthermore, an owner may also have the right to attach your moveable goods on the property in lieu of rent. This is known as a tacit hypothec.
Unless the lease provides to the contrary, an owner has a tacit hypothec over moveables brought onto the property, and over fruits and crops produced by the property. This is a security for arrear rent; it means that the owner may attach the moveables and have them sold to pay off unpaid rent. The owner can also, in certain circumstances, attach goods on the property belonging to a third party, for example, a hire-purchase company. (See credit agreements.)
Before this can be done, the owner must ensure that the following requirements have been met:
The goods must have been brought onto the leased premises with the knowledge and consent of the company;
The tenant must have intended to use the goods indefinitely;
The hire-purchase company fails to inform the property owner that it is the owner of the goods;
The property owner is unaware that the goods do not belong to the tenant (but to the hire-purchase company). The hypothec exists only in respect of arrear rent (not in respect of arrear electricity or similar charges) and only in regard to goods actually present on the leased premises at the time.
A lease usually ends in the same way as any other contract: when the agreed duration ends, cancellation following breach of contract or by mutual agreement.