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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.

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Review overview
6 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?

  • Caro 16th April 2018

    Hi David; My landlord did not do any maintenance on a garden door and acknowledged this when we renewed our lease after a year. It was so badly damaged that a 4 month old puppy was able to chew threw it
    He has now deducted the cost of replacement for a solid wood door from my deposit. He is also claiming that there was a carpet burn on the main bedroom floor which i am not aware of and wants to claim for that post exit inspection. Several people had access to the premises after we left

  • Derick 12th May 2018

    Hi there,
    I moved out of an apartment on 28 April 2018. The landlord did a thorough inspection and was satisfied with the condition and excepted the keys. He said that the remainder of my deposit will be payed back soon. A part of deposit was payed when I notified him of moving out. He went back later and now make claims of missing glasses, plates, clothe hangers and broken tile.(he was aware of the cracked tile when we moved in) He also claim that the place is infested with cockroaches and he had to get people to fumigate on 30 April, two days later. He deducted the cost from deposit and withheld money for more fumigation is necessary. There was no inspection done when I moved in and I only signed the lease contract. When I left on 28 April there were no cockroaches and he was happy with everything. There was notices during my stay of pests and treatment thereof in the block of flats.

  • Aideen 11th July 2018

    My landlord is telling us to leave before our lease is up. Yes I admit I have battled for 2 months paying rent and was in constant contact with him. He told us we are to vacate 15 days before our lease is up. We have had so many issues with electricals even assessors from an insurance company refused to repair anything as they informed us the house is not compliant. We have had electrical issues from day 1 and the landlord never once brought in a qualified electrician. A few weeks ago when we asked to see an electrical compliance certificate he said we don’t have the rights to see it because we are leaving the premises. There is damp all over the house we have notified him of all problems but he always found the cheapest way to resolve it. I was even shocked in my bathroom due to electrical faults in the oven!!!! He simply ignored it and got his handy man to fix the stove. Do I have any case against this horrible human being who allowed a family to live in a house that is so badly put together? He has even had people connect speaker wires in the roof to make connections. Please give me advice I have 20 days to fight this if there is anything to fight for

  • Lucille 18th July 2018

    Good day,

    I just need to find out a few things Please.

    We are renting a garden cottage with our own entrance, the owners live in the house.

    There were no inspection upon moving into the garden cottage (we are renting there on yearly contract) we just received our contract for a year, however i would like to find out before we sign it as the landlords (owners) think they can do as they please.

    They enter our premises as they please even if we have guests over the landlords will just come through a gate they installed in the wall where the cottage and their yard is separated. They have even gone as far as to being nasty towards our guests, we have friends who do not even want to visit us anymore.

    We do not get a receipt for our rent or electricity paid, the cottage electricity run on a meter as per the landlords, we don’t see the meter they tell us how many units we used and bill us R2 per unit, which is also more than what each unit costs.

    There is extremely bad damp in the cottage and i have 2 kids. we have told them before and they said they will have a look at it but to no avail. We repainted the cottage out of our own pocket as it looked bad, but the damp still came back and its 2 months after we repainted (with lanlords permission).

    The damp is pretty bad and i would just like to know what we can do as im worried about my kids health.

    We did not receive a deposit receipt and we have to pay the rent cash every month hence we do not have proof that we pay rent.

    Please could you advise on what we can do regarding the above.

    The landlords daughter (now 18) is nasty to my kids calling them (vuil gatte) and everything and we not allowed to say anything and can also not as she is pregnant.

    Thank and sorry for the long email.

    P.S: on the rental agreement there are a view points which doesnt look legal like. if we do not pay the electricity on or before the 1st of every month they will disconnect our electricity, (we pay rent and electricity before the first since we moved in in 2014).

    Please see attached 5 photos of damp and that is not even a scratch of the damp in that cottage. Its a 2 bedroom and we only have a front door, no back door.

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