Oct
2012
When tenants find themselves at the end of their lease period, they often expect to get their full deposit back when they leave. This is especially the case when the tenant has left the property clean, neat and free of any impairment. But, landlords will often retain their deposits because they feel that repairs need to be made to the property.
As such, it is important for both the tenant and the landlord to have a clear and unambiguous agreement as to what constitutes fair wear and tear and what constitutes wilful damage. To this end, it is crucial that before a tenant signs a lease, a full inspection is carried out of the property. The tenant, landlord and leasing agent must all be present for this. Any and all defects, problems or potential problems must be noted and then signed by both parties. The tenant and/or landlord may also want to take photographs of the existing damages or problems to record them in case of a dispute at a later stage.
It is important that both the landlord and the tenant are aware of what, legally, constitutes ‘fair wear and tear’ which will remain the landlord’s financial responsibility and what damages a tenant will be liable for.
A tenant may not be held financially responsible for fair wear and tear, which is legally defined as “the deterioration or depreciation in the value of the property by ordinary and reasonable use”. The Rental Housing Act of South Africa as well as the Consumer Protection Act specifically states that the tenant may not be held liable for this type of damage, as it would be unjust contractual practice on behalf of the landlord.
Typically, a tenant will be held responsible for the cost of damage to something that would normally not wear out, or when the damage inflicted significantly shortens the item’s lifespan. Tenants of rental properties should be aware that they will be held responsible for the cleaning of the premises when they vacate it. The cost of, for instance, pest control, removal of mildew and markers or signs from walls and windows will all be deducted from the tenant’s deposit. This all forms part of the necessary cleaning that will need to be done to provide a suitable environment for the incoming tenant to inhabit. Landlords must, however, remember that they cannot expect an outgoing tenant to carry the costs for deep-cleaning of items like carpets or drapes before the new tenant arrives. Tenants may well carry the cost should they inflict large stains or rips, but the landlord is obligated to consider the age and expected lifespan of the damaged item in question when determining the amount that will be deducted from the deposit.
Paint has an average life expectancy of three years, and as such the cost of repainting the premises will and should be calculated according to the length of the tenants stay at the property in relation to the amount of time the paint has been on the walls. If there are a large number of holes in walls or ceilings that require plaster, filling and painting, the cost of repair will be subtracted from the deposit, whereas minor marks and scratches can be considered fair wear and tear and repair should not be charged to the tenant.
Essentially, the best principle to follow – as either a tenant or a landlord – is to ensure that before a lease is signed all existing problems are documented and that both parties are on the same page with regards to what repairs will be the tenant’s responsibility and what will remain the landlord’s obligation.
