The relationship between a landlord and tenant is primarily governed by the lease agreement and the Rental Housing Act 50 of 1999. When a tenant damages a property, the landlord’s ability to claim for repairs, usually from the security deposit, is almost entirely dependent on whether specific statutory procedures were followed regarding inspections.
1. The Necessity of Joint Inspections
The law requires that the landlord and tenant jointly inspect the property at the beginning and the end of the lease. These inspections serve as the official record of the property’s condition. Without them, a landlord faces a significant legal hurdle in proving that the tenant caused the damage, as opposed to the damage being pre-existing or resulting from fair wear and tear.
2. The Ingoing (Incoming) Inspection
Before a tenant moves in, a joint inspection must be conducted to identify any existing defects. This list is signed by both parties and attached to the lease.
The Rental Housing Act 50 of 1999, Section 5(3)(e) states:
“the landlord and the tenant must jointly, before the tenant moves into the dwelling, inspect the dwelling to ascertain the existence or not of any defects or damage therein with a view to determining the landlord’s responsibility for rectifying any defects or damage or with a view to registering such defects or damage…”
3. The Outgoing Inspection
Before the lease expires, the parties must meet again to determine if any damage was caused during the tenancy.
The Rental Housing Act 50 of 1999, Section 5(3)(f) states:
“at the expiration of the lease 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 with a view to ascertaining if there is any damage caused to the dwelling during the tenant’s occupation thereof…”
4. What Happens if Damage is Found?
If damage (beyond fair wear and tear) is identified during the joint outgoing inspection, the landlord may deduct the reasonable cost of repairing that damage from the tenant’s deposit and any interest accrued. The landlord must provide the tenant with receipts as proof of the costs incurred.
5. The “Deemed” Clause: Failure to Inspect
If a landlord fails to arrange or attend these joint inspections, the law creates a “deemed” provision that is highly unfavorable to the landlord.
The Rental Housing Act 50 of 1999, Section 5(3)(g) states:
“failure by the landlord to inspect the dwelling in the presence of the tenant as contemplated in paragraphs (e) or (f) is deemed to be an acknowledgement by the landlord that the dwelling is in a good and proper state of repair, and the landlord shall have no further claim against the tenant who must then be refunded, in terms of this subsection, the full deposit of the tenant plus interest by the landlord.”
In simpler terms: if you do not perform a joint inspection, the law assumes the property was in perfect condition when the tenant left, and you forfeit the right to claim for damages from the deposit.
To successfully hold a tenant liable for damages:
1. Perform a joint ingoing inspection and document all existing defects.
2. Perform a joint outgoing inspection within three days prior to the lease ending.
3. Distinguish between “Damage” and “Fair Wear and Tear” (the latter cannot be claimed).
4. Retain all invoices for repairs to justify deductions from the deposit.
by Jaques van den Ende