The Mandatory Disclosure Form (MDF) is needed to confirm the condition of a property. This may influence a prospective Tenant’s decision to occupy the property or not. It also makes the Tenant aware of potential maintenance concerns.

According to the Property Practitioners Act, having an MDF is a legal requirement. As such, you need an MDF to be compliant. Property practitioners can be held financially liable if the MDF is not presented to new tenants.

It is both necessary and ethical to make a tenant aware of the property’s condition, as any major damage discovered after they take occupancy could obstruct their use of the property.

The Mandatory Disclosure Form (MDF) is a property condition report filled out by the Landlord. The report is presented to prospective Tenants before signing the lease, so that they are aware of major defects on the property.

Items listed in the MDF include cracks in the foundation, defects in the plumbing system (not leaking taps), and defects in the roof. These issues are ones that are typically not picked up on from simple observation, but informed through expert inspection.

As such, Tenants are presented with the Mandatory Disclosure Form, but an ingoing inspection also takes place to note more patent defects, such as scuffed skirting or cracked tiles.

Should a Tenant wish for an item on the MDF to be further inspected, this inspection will be for their account.

The right of the tenant to give 20 business days notice applies only to fixed-term agreements.

If for instance, after the initial 12-month lease the tenant doesn’t want to be bound by another 12 month lease, maybe they’re wanting to buy a property or relocate, and the parties agree to continue the lease rolling over on a two-monthly basis for a further year (either party with then the right to give two months notice at any time), the CPA should not apply as it is not a fixed term.  Therefore the tenant would be bound by the agreement to provide two months notice.

Important note for landlords – if you do draw up a renewal lease as above on a rolling monthly or two-monthly basis and you will be looking for a new tenant on termination of that current lease, remember to insert ‘Calendar’ month to avoid the notice being given by the tenant at any time of the month, as most new tenancies would start on the 1st of a month.

In terms of the Consumer Protection Act (CPA) the consumer (tenant) can terminate a lease early before it’s expiry, with certain proviso’s.

A tenant has the right to give 20 working days notice (*see exclusion below) but reasonable penalties will apply if the property is not timeously re-let. The landlord is obliged to make every effort to re-let the property and depending on market conditions it should be achievable to rent the property to a new tenant within a couple of months.

The CPA talks about a reasonable penalty being applied and Regulation 5 (3) stipulates that a supplier (landlord) cannot “charge a consumer a charge that would have the effect of negating the consumer’s right to cancel a fixed term consumer agreement as afforded to the consumer by the Act”, meaning that the penalty must not be so great as to dissuade the tenant from wanting to cancel.

So you, as the tenant, could be liable for a penalty, but not liable to pay for rent for the remainder of the contract, that would be deemed unreasonable. A reasonable penalty is thought to be up to in the region of two months rent. You may also be liable to pay pro rata agent’s commission, i.e. a relevant portion of the commission which the landlord had paid the agent for procurement of your tenancy, and any costs of marketing.

* Note – definition of consumer in terms of CPA:  A lease does not fall under the ambit of the CPA if the consumer (tenant) is a juristic entity with an annual turnover which exceeds the threshold stipulated by the Minister of Trade and Industry.  All natural people are consumers regardless of their net asset value.

Rent is payable as written into the individual lease which is usually the 1st of the month unless a later date is written into the agreement by special arrangement between the parties – there is no common law or other 7-day grace period.

Given that a lease is a legal agreement all terms are binding, and also as regulated by the Rental Housing Act the tenant is obliged to make prompt and regular payment of the rental and any other charges in terms of the lease.

An undefended tenant eviction should take approximately 3 months so it’s important to promptly put a tenant to terms if their rental payment is late in order to start the eviction process as quickly as possible after giving them, in writing, the required 20 business days to remedy the breach.

In order to evict a tenant in South Africa one needs to first issue the tenant with a letter of demand/breach letter giving them 20 working days to remedy the breach (these letters need to be posted registered mailed and can also be hand delivered, and/or emailed to the tenant). If the tenant does not comply, i.e. remedy the breach, within 20 working days one should immediately instruct the attorney to start the eviction process. The eviction process, if undefended, should take approx. 3 months.

If a tenant is in arrears with rental the Landlord may exercise his rights in terms of Landlord’s Hypothec by attaching the tenant’s goods. This cannot be done without a court order. Basically it is an action taken by the landlord to collect outstanding rental by means of selling the tenants goods.

The summons and the attachment of the goods may take place simultaneously to avoid the tenant from removing his goods before the hypothec takes effect.

The only instance in which a landlord may cancel a lease agreement is if the tenant is in material breach of the contract despite being given 20 days written notice to remedy a breach. If the matter is rectified by the tenant within the 20-day notice period they are entitled to continue with the lease. The 20-day notice period is a provision of the Consumer Protection Act (prior to this legislation tenants could be required to remedy a breach within 7 days).

A Landlord may not enter a rental property without notice to the tenant. The tenant has protection against a landlord’s intrusions – in terms of the Rental Housing Act the tenant is entitled to undisturbed use and enjoyment of the property and the lease agreement will state the required notice which needs to be given to the tenant for access for inspection purposes, usually 24 hours notice is considered reasonable and fair.

Excellent question! A tenant’s income needs to be 3 x the rental in order to qualify. Before any application is proposed to the owner the prospective tenant’s income is evaluated for affordability, i.e. Income vs Expenditure. Sometimes the prospective tenant receives a fantastic income, but ultimately does not qualify and therefore not a suitable applicant. An agent will look at loans they may have, account payments, child maintenance (if divorced), school fees, car repayments, general expenses. The bank statements show a complete picture of how tenants conduct their income and expenditure and their current rental payments.

You will find it difficult to let a property and/or achieve your asking rental without at least the basic security of alarm and burglar bars. Also, lack of security will affect the tenant’s insurance, further making the tenant disqualify your property as a rental option.

If the carpets had been new at commencement of the lease it would be fair to consider penalising tenants after 1 year if they didn’t come up clean. New carpets have a form of protection shield, i.e. like a ‘scotchguard’ but, as we’re told, over time with cleaning they lose that protection and everyday wear especially in high traffic areas ‘stains’ that much easier and doesn’t come out easily, or at all. This would therefore be considered fair wear and tear. Refer to our article for some good guidelines on “What is Fair Wear and Tear in a Rented Property.”

Fair wear and tear means damage or loss to an item at the property which happens as a result of ordinary use and exposure over time. See our article on Fair Wear and Tear and what the landlord may and may not deduct from rental deposit.

Tenants may give 20 business day’s notice at any point in the contracted period (term of lease agreement) subject to reasonable cancellation penalty, which in terms of the CPA can be determined by the amount still owed on the contract (value of the agreement), costs incurred by the landlord to re-let e.g. agent’s fees, etc.

If the landlord/agent were unable to conclude a new lease with a suitable, qualified tenant you would still be liable for rental. It’s a bit of a dependent condition, as you are entitled to give notice but in terms of the Act can still be liable for the contracted amount.

The tenant’s damages deposit is held in Trust for the duration of the lease in accordance with the Rental Housing Act, and all interest accrues to the Tenant.

On unfurnished property the minimum deposit is one and a half month’s of the monthly rental, payable on signature of the lease agreement. This can increase e.g. if you have pets the landlord may ask for additional deposit, and if the property is furnished usually a double deposit is required.

A Tenants property damages deposit must be refunded within 7 days if no repairs required. If repairs are needed to rectify any damage, the deposit must be refunded within 14 days of restoration of the property, i.e. the landlord must action the repairs and refund the tenant within 14 days of repairs being finalised. The landlord or agent may not however take their own sweet time with finalising repairs – if a landlord or agents drags their heels with effecting repairs the Tribunal could rule that the deposit be refunded.