Written by J’Retha van Rensburg
30 June 2022
What is a Residential Lease Agreement?
A residential lease agreement, commonly referred to as a ‘lease’ or rental agreement, is a contract that sets out the terms and conditions whereupon a tenant rents a property, for the purposes of residence.
The landlord bestows the use and enjoyment of his property to the tenant for a specific period of time in return for payment of a rental amount. It is not compulsory for a lease agreement to be in writing (as verbal agreements are legally recognised at law in South Africa), however it is strongly advised that they be reduced into writing for ease of reference when disputes arise in future.
What Are the Obligations of the Tenant?
- to pay the agreed amount of rent and any attendant municipal charges, to the landlord in accordance with the terms stipulated in the lease agreement;
- to pay the deposit amount timeously, if required in the lease agreement;
- to take proper care of the property and return it in the same condition/manner in which the property was found, except for reasonable wear and tear;
- to vacate the property at the termination of the lease agreement;
- to use the property solely for the purpose for which it was leased out;
- to refrain from causing any nuisance that might inconvenience the landlord or other tenants on the property;
- to afford the landlord reasonable access to the property.
What Are the Obligations of the Landlord?
- to deliver the property to the tenant and to ensure that the tenant has access for the use and/or enjoyment of the property;
- to maintain upkeep of the property for the duration of the lease agreement e.g attendance to any significant repairs;
- to ensure the undisturbed enjoyment of the property by the tenant;
- to ensure that rates, taxes and levies of the property are settled unless stipulated otherwise in the lease agreement.
What Should Be Included in a Rental Lease Agreement in South Africa?
The provisions and clauses of a residential agreement may vary, but a standard lease agreement should at the very least, include the following:
- Identities of the Parties:
The identities of the landlord and the tenant must be clearly described, including but not limited to their genders, contact details and domicilium citandi et executandi.
- Payment Details:
Details relating to payment of rental must be clearly set out, such as:
- the rental amount due, the date upon which it must be paid, and also whether the rental amount is to be paid in advance or retrospectively;
- banking details of the landlord in which the rental amount will be paid into Monthly. Alternatively, where the rental is to be paid in cash, a clear description of the party to whom and where it must be paid;
- the deposit amount (if any) as well as the date on which it will be due, owing and payable.
- Premises:
A detailed description of the property should be given, subject but not limited to the physical address, type of property, whether furnished or unfurnished and the size (usually in square metres) of the premises in its entirety.
- Duration
The lease agreement should clearly refer to the commencement date, termination date and the terms under which the agreement may be terminated. Some lease agreements run uninterrupted for a stipulated period, whilst others are on a month-to-month basis.
- Repair and Maintenance Policies
A concise outline should be provided pertaining to the upkeep of the property, clearly indicating the responsible party that has to fulfil the duty.
- Rules and regulations
A list of the rules and regulations that must be adhered to by the tenant and occupants of the premises should be provided.
- Default
The lease agreement should clearly outline the process to be followed in the event where either of the parties breaches the agreement e.g the time that the breaching party will be allowed to remedy the breach, the time within which the aggrieved party must notify the breaching party of their obligation to remedy the breach, as well as any legal costs associated with any legal proceedings. Generally, this clause would also deal with the utilisation of the deposit, and the amounts that the landlord will be entitled to deduct from the deposit.
- Signatures
The parties involved and at least two (2) witnesses must sign the agreement and affix initials on each page.
Who Can Reside On the Property?
Only the tenant and the people listed as occupants may reside on the property. Occupants can be both children and adults. The tenant however, should be above the age of 18 years to be considered as having the necessary legal capacity to enter into agreements of this nature.
What Happens If a Tenant Violates a Term of the Residential Lease Agreement?
Should the tenant breach the terms of a residential lease agreement, they will be liable to rectify it, which may result in the tenant paying money to repair any damages caused – alternatively, to settle any arrear rental. Should the tenant not voluntarily, and within the stipulated time-frame remedy the breach, they may face eviction and possible lawsuits for damages resulting from the breach.
What Remedies Are Available to Tenants and Landlords Should a Dispute Arise from a Residential Lease Agreement?
Both the Residential Housing Act 50 of 1999 as well as the Consumer Protection Act 68 of 2008 (albeit, not all leases agreements are affected by the Consumer Protection Act of 2008) regulate the relationships between tenants and landlords. The first place of instance will be to carefully peruse the lease agreement itself, to identify the remedies available to either of the parties in case of breach.
What happens if there is no written lease agreement between the parties?
In the event that there is no written lease agreement, either party will be entitled to approach the Rental Housing Tribunal, which is an independent body that resolves disputes between landlords and tenants.
How Burger Huyser Attorneys Can Assist You?
Should a dispute arise from your residential lease agreement, feel free to contact Burger Huyser Attorneys’ lease agreement lawyers for more information on what we can do to protect your legal interests.
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
