Inspection obligatory

Ex-QDMS

Dr Sayed Iqbal Mohamed

The Rental Housing Act refers to joint inspection of the dwelling by the tenant and the landlord before the tenant takes occupation, and within three days before the tenant moves out.

Why is the inspection or inventory list very important?

The rights and duties of the tenant and the landlord or landlady are protected when joint inspections are carried out at the beginning and end of the lease period.

* It is proof of the landlord’s duty to carry out the repairs needed or put right any damage.

* When vacating, the tenant’s deposit is not withheld for defects or damage that the landlord was required to repair.

* The landlord can hold the tenant responsible for any defect or damage caused by the tenant, the tenant’s visitor or household member (section 4(5)(e)).

At common law, the tenant was liable for damage caused due to his or her negligence (Fir & Ash Investments (Pty) Ltd v Cronje and Others 2008 (1) SA 556 (C)), but the act extends the protection to the landlord by including the tenant’s visitor and household member.

* The landlord cannot hold the tenant liable for any damage if he or she fails to inspect the dwelling with the tenant (section 5(3)(j) before the tenant occupies the dwelling and jointly inspects it three days before the lease expires.

* The tenant can be held liable for damages to the dwelling if he or she refuses or fails to carry out an inspection jointly with the landlord (section 5(3)(k) and (l).

* In the event of damage caused by the tenant, the landlord can use the deposit and the accrued interest for the cost of repairs (section 5(g). It is therefore in the tenant’s interest to carry out any repair he or she is responsible for.

There is obviously a problem with an inspection within three days of vacating because an unscrupulous tenant may damage the property on the last day if the inspection was carried out on say the penultimate day.

In fact, it would appear that parties need to meet at about midnight and the keys handed over to the owner at that time.

This is impractical.

Difference between viewing and inspection

It is common practice that tenants view the premises and thereafter decide to enter into a lease contract. Viewing the premises is not the same as inspecting it for the purpose set out in the act; that is, to inspect for any defect. Under common law, it was not a requirement to inspect the premises (Salmon v Dedlow 1912 TPD 971).

The act has made this a requirement and is obligatory: Section 5(4) states: The standard provisions referred to in subsection (3) may not be waived by the tenant or the landlord.

Joint inspection is therefore necessary at the commencement of the lease and towards the end of the lease period.

It is the landlord who is required to make sure that the property is handed over to the new tenant without any defect, and a joint inspection is to confirm this or to agree on any defect that needs to be repaired.

* Dr Sayed Iqbal Mohamed is the chairperson, Organisation of Civic Rights.

For advice, contact Pretty Gumede or Loshni Naidoo on 031 304 6451.