LET'S TALK What you need to know about rental property inspections
The importance of conducting ingoing and outgoing inspections cannot be overemphasised. One of the most common disputes between landlords and tenants concerns the return of the deposit. The best way to avoid a dispute is to ensure that a proper ingoing and outgoing inspection is attended to.
Inspections are required by The Rental Housing Act 50 of 1999 (“the RHA”). Section 5(3)(e) provides that a landlord and tenant must jointly, before the tenant moves in, inspect the property to ascertain the existence of defects or damage to the property. Likewise, section 5(3)(f) provides that three days prior to the tenant vacating the property, the landlord and tenant must again jointly inspect the property to determine whether the tenant caused any damage. As per section 5(3)(j) of the RHA, should the landlord not attend either inspection, in the presence of the tenant, the landlord acknowledges that the property is in a good and proper state of repair. In such an instance the landlord will not be allowed to appropriate the tenant’s deposit to pay for any damages. Conversely, according to section 5(3)(k), should the tenant not attend an inspection with the landlord, the landlord must within seven days of expiration of the lease, assess the damages and deduct the amount from the deposit.
How is this dealt with in practice?
The Estate Agent may attend the inspection on the landlord’s behalf. However an occupier cannot attend the inspection on the tenant’s behalf. The tenant that signs the lease agreement must attend the inspection.
It is important for Estate Agents to take notes and photographs, clearly showing the overall condition of the property and recording any defects. Every defect regardless of its size should be noted and photographed and a copy of the defects held by the owner, the estate agent and the tenant. The document, as well as the photographs, serve as a reference when the tenant moves out and the landlord calculates the costs of any additional damage.
It is important to distinguish between damages and “fair” wear and tear. A tenant cannot be held liable for “fair” wear and tear on a property. A common example is carpets. Carpets have a limited life span and although you can deduct the costs to clean the carpets when the tenant vacates, you cannot expect a tenant to replace carpets which have become old and worn out over their usual life span.
Section 5(3)(h) of the RHA further provides that the landlord has a duty to provide the tenant with the relevant invoices as proof of the damages. A landlord cannot merely estimate the costs.
Any dispute which may arise regarding the inspection or the deposit can be referred to the Rental Housing Tribunal.
In order to navigate the practical effects of the RHA we recommend that you consult your attorney or property rental agent/manager for advice and assistance sooner rather than later.