Snaid & Morris

What You Need When Drafting a Lease Agreement & What To Look Out For When Signing Same As a Tenant

Please note that a lease agreement between a tenant and a landlord, need not be in writing, but if requested, the landlord must oblige, and the lease should be reduced to writing. The safest option would definitely be to reduce the terms and conditions to writing.

When drafting a lease agreement or perusing same prior to acceptance and signature, should consider the terms as found in the Rental Housing Amendment Act 35 of 2014 (“RHA”).

For a lease agreement to be enforceable and/or legal, should contain the following details and/or annexures: –

**In terms of Section 6 of the Rental Housing Act, the following items are required to be include in a Lease agreement. **

  1. The names of the tenant and the landlord and their addresses in the Republic for purposes of formal communication;
  2. the description of the dwelling which is the subject of the lease;
  3. the amount of rental of the dwelling and reasonable escalation, if any, to be paid in terms of the lease;
  4. if rentals are not paid on a monthly basis, then the frequency of rental payments;
  5. the amount of the deposit, if any;
  6. the lease period, or, if there is no lease period determined, the notice period requested for termination of the lease;
  7. obligations of the tenant and the landlord must not detract from the provisions or the regulations relating to unfair practice;
  8. the amount of the rental, and any other charges payable in addition to the rental in respect of the property;
  9. A list of defects registered and must be attached as an annexure to the lease;
  10. A copy of any House Rules applicable to a dwelling must be attached as an annexure to the lease.
  11. A landlord must ensure that the following provisions should be complied with and before giving occupancy to the tenant, namely:- 11.1. the lease period, or, if there is no lease period determined, the notice period requested for termination of the lease; 11.2. obligations of the tenant and the landlord, which must not detract from the provisions or the regulations relating to unfair practice; and 11.3. the amount of the rental, and any other charges payable in addition to the rental in respect of the property.

The following terms are the guidelines of what should be discussed, written down, attached or considered when a tenant takes occupation of a rental property: –

• A written receipt for all payments received by the landlord should be provided to tenant for record purposes and on a monthly basis;

• such receipt must be dated and must clearly indicate the address, the date, the amount paid for rental and any further information of the tenant.

• Deposits are asked for when the Landlord requests same in their drafted lease agreement. The deposit must be placed in an interest-bearing account and the interest should be paid back to the tenant upon the lease being cancelled and/or terminated and within 7 (Seven) days. If the Landlord used the deposit for any repairs, the deposit, including interest should be paid over to the Tenant and within 21 (Twenty-One) days after the expiration of the lease agreement.

• The tenant and landlord must walk through the dwelling and note any damages and/or defects prior to the tenant moving in. This is an opportunity to take photos of the dwelling to prove any likely claims against the tenant and or where the tenant will request necessary repairs. If the tenant picks up any further damages or defects, that they should report same to the Landlord within 7 (Seven) days. Furthermore, 3 (Three) weeks prior to the tenant moving out of the property, both the tenant and landlord must walk through the property again, to inspect any damages caused by the tenant.

• If there are damages to the dwelling, the Landlord may on the expiration of the lease, apply the deposit and interest towards the payment of all amounts for which the tenant is liable under the said lease. The tenant must be provided with the invoice for repairs and replacements to be made.

• Failure by the landlord to inspect the dwelling in the presence of the tenant is deemed to be an acknowledgement by the landlord that the dwelling is in a good and proper state of repair, and the landlord will have no further claim against the tenant who must then be refunded, in terms of this subsection, the full deposit plus interest by the landlord;

• should the tenant fail to respond to the landlord’s request for an inspection, the landlord must, on expiration of the lease, inspect the dwelling within 7 (Seven) days from such expiration in order to assess any damages or loss which occurred during the tenancy;

A basic guideline to the contents of an enforceable lease agreement contains various clauses. These clauses, if drafted to protect both the landlord and the tenant, would contain the following clauses:-

  • Definitions;
  • Parties;
  • Address;
  • Rental & Deposit;
  • Additional payments, if any;
  • Acknowledgements by the tenant;
  • Subletting terms (in the positive / negative);
  • Occupation;
  • Defects & Maintenance;
  • For Sale & To Let notices;
  • Use of the premises by the tenant;
  • Liability & indemnity;
  • Improvements;
  • Breach;
  • Disputes;
  • Domicilium citandi et executandi;
  • Termination and/or cancellation;
  • General;
  • Schedule of occupants;
  • Special Conditions;
  • Capacity of tenant & suretyship;
  • Signature, witnesses & date.

Contact our offices at info@snaidmorris.co.za to request a lease agreement to be reviewed or for our offices to draft same in accordance with your conditions and specifications.