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Landlords cannot claim for damages if no incoming inspection was done

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Q

It is not always physically possible to inspect a property before tenants move in and sometimes they have just moved in when the inspection is done. Does this make a big difference?

A

I am of the view that it is essential for the parties to conduct an incoming inspection prior to the tenants taking occupation of a property.

The above view is informed by the express wording of section 5(3)(e) of the Rental Housing Act, which provides that the incoming inspection must be conducted prior to a tenant moving into a dwelling.

Furthermore, section 5(3)(j) of the Act, states that any failure by the landlord (which by implication includes the landlord’s agent) to inspect the dwelling in the manner contemplated in sections 5(3)(e) of (f), is deemed to be an acknowledgement by the landlord that the property is in a state of good and proper of repair, and will therefore preclude the landlord from either:

  • Claiming any damages from the tenant; or
  • Deducting any amount from the tenant’s deposit.

If it is the accountability of your agency to conduct these inspections, I would suggest that you ensure strict adherence to the letter of the Rental Housing Act, as any omission on your part, which has the effect of precluding a landlord from claiming damages from a tenant, may render the agency liable for a damages claim (on the part of the landlord).


Got a burning legal question? Email david@hometimes.co.za and we’ll be sure to assist you 


Who is Marlon Shevelew?

Marlon Shevelew, director of Marlon Shevelew and Associates.

Marlon Shevelew, director of Marlon Shevelew and Associates.

Marlon Shevelew is the director of Marlon Shevelew and Associates Inc, a  law firm specialising in rental property, sectional title, contractual, consumer and company law. The firm is the recipient of more than 45 international property law awards. Marlon is the current author of PayProp’s rental documentation and preferred rental property attorney to the Institute of Estate Agents South Africa (IEASA), the Rental Housing Tribunal Western Cape, presenter of the Advanced Residential Property Law Seminar endorsed by the University of Cape Town and the director of the top rental property law firm in the country, according to several international publications. Marlon also created the unique Rental Retainer Club and RentDoc which offers clients affordable legal fees for rental property-related matters. Marlon is contactable on marlon@marlonshevelew.co.za anytime for more information on these services.

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Review overview
2 COMMENTS
  • Tammy Coetzee 18th December 2017

    My lease came to an end at the end of November 2017. I lived there for 3 years. Paid a deposit of R4500. No entry or exit inspections were done. The day I moved was the day the previous tenants moved out therefore receiving the keys from the previous tenant. In the 3 years I was there the landlord only repaired certain things in the unit once off. I received a deposit refund form saying that my deposit refund is R4750 after 3 years. Surely R250 cannot be the interest incurred. But he also deducted R2100 for painting replacement of curtain railings replacement of cupboard handles and hinges and light bulbs. First of all the flat was not painted when I moved in. Second the curtain railings are the landlords which were already rusted and there was nothing wrong with cupboard handles. The hinges were rusted and the cupboards warped from the damp. Light bulbs I only replaced the ones that were working not the ones that weren’t working when I moved in. And then he still charged me for cleaning of the flat after all the above was done after I moved out and cleaned. I do have photos. In the 3 years I have never met either the landlord or agent. How can he now deduct all of this if no entry or exit inspection was done?

    • David A Steynberg 17th January 2018

      Hi Tammy, he cannot deduct the deposit due to no entry inspection conducted. Did you send him a snag list of things wrong with the unit when you moved in?

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