Tenants, here’s how to avoid red flag-littered lease agreements
The rental housing market is a competitive playing field, even more so in sought-after areas; when the right property at a reasonable price comes along you better jump or risk losing it to the next prospective tenant. No wonder then that so many tenants get caught up in unreasonable, unlawful lease agreements.
We’ve dealt with many desperate tenants asking us for advice as a last resort to dealing with landlords who have written illegal early exit clauses, for example, into their lease agreements.
One would expect that it is easy to avoid this problem – simply rent through a rental agent and avoid dealing with a private person at all. Unfortunately, in many cases, the lease agreements produced by such agents are also not always enforceable.
The question therefore is, what can and should ordinary South Africans do to avoid unlawful lease agreements and possibly fallouts with their landlord at a later stage?
Elize Le Roux, managing director at Xpello, which offers eviction process and other property investment management, says that she is no stranger to such ‘unusual’ contracts – like the cases where the parties agreed to the exclusion of the PIE Act: The landlord will be able to immediately remove the tenant in the case of failure to make payment.
According to Le Roux, however, there are clear signs that a lease agreement is less than legal. The origin of the lease agreement is often the first and clearest sign that there are potential issues with the contract. “If the owner drafted it themselves by cutting and pasting from various agreements or the lease agreement is very old it should set off alarm bells,” says Le Roux.
A good place to start for prospective tenants is to ensure the agreement is valid, and the basics of this are whether or not all of the following is present in the agreement: Details of the parties to the lease, the property that is being leased, the agreed rental amount and the duration of the lease. “I suggest that any special agreements between the landlord and agent, such as parking arrangements, are also noted in the lease,” adds Le Roux.
At the very least, says Le Roux, a prospective tenant should carefully look at the breach clause, the notice clause and the schedule to the lease agreement before signing anything. “The schedule contains all the basic information that the parties agree to and what will happen if any party should be in breach of the contract.”
If you are one of the lucky tenants who picks up a possible issue with a lease agreement before signing it, but you are still interested in the property, your best option is not to try and discuss the issue you have with the landlord. Rather obtain the advice of an attorney to peruse the agreement. The attorney will then be able to give you an opinion on which areas of the agreements could cause difficulties, and enable you to work from there.
Once you’ve signed a lease agreement and have paid over a holding deposit you should keep in mind that your responsibilities do not end there. Le Roux advises that you should ensure the lease agreement is fully signed by all parties and is not amended in any way after everything is signed.
“Keep a copy for your records to ensure you abide by the rules and the agreement,” says Le Roux.