LEASES : Do they need to be in writing
In South Africa the law of landlord and tenant governs leases. The law of contract, a series of legislations together with the common law, in turn shapes the law of landlord and tenant. Acts such as The Rental Housing Act, The Consumer Protection Act, the Constitution of South Africa Act, and even the Deeds Registry Act may all have a role to play in a lease agreement. A lease is normally concluded when one of the parties (the landlord) allows the other party (the tenant) the right of use and occupation of a specified property and for a fixed amount (the rental amount).
There are generally two types of leases, long leases and short leases. A lease under ten years is regarded as a short lease. Long leases run from ten years sometimes even going up to ninety-nine years. Leases may also be registered at the Deeds Office. The Rental Housing Act, which came into effect in August 2000, and covers both urban and rural areas, was created to protect the rights of both the landlord and the tenant.
The Act limits the parties contractual ability in that there are certain provisions which the parties are precluded from agreeing to. Since 1 April 2011, the Consumer Protection Act also has an impact on certain residential leases. In terms of the Rental Housing Act, leases need not be in writing. However in order to ensure proper protection for both landlord and tenant, it is highly recommended that the lease agreement be reduced to writing.
A written lease agreement has to contain certain specific clauses. These would include, full details and addresses of the landlord and tenant; a proper description of the dwelling; what deposit is to be paid; details of the rental amount to be paid; when, how and where rental payment to be made; any escalation to be applied and if so when and by what amount; under what circumstances the lease may be terminated; the duration of the lease; what additional charges the tenant would be liable for, for example lights and water payments and so on.
The lease agreement should also set out what the rights and obligations of both the landlord and the tenant are. When the lease expires, the tenant is obliged to return the leased premises in the same condition as when he took occupation, fair wear and tear excepted. Both parties should at the commencement and at termination of the lease, carry out a joint inspection of the property.
If there's no damage to the premises, the landlord has to refund the deposit to the tenant, within 7 days of the lease expiring. If the landlord or his representative fails to conduct an inspection, it would be regarded as if there was no damage to the premises. If however the premises were damaged, the landlord must refund the deposit with 14 days of the premises being repaired.
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