Landlords cannot claim for damages if no incoming inspection was done
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?
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).
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Who is Marlon Shevelew?
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 email@example.com anytime for more information on these services.