Rental Deposits, must it be paid?

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No one has the right to arbitrarily demand that you pay for something without substantiating how they arrived at that amount.

Debt collectors, for example, notoriously contact alleged debtors and demand that they pay relatively large sums to settle an often old, prescribed debt, and then put the onus on them to prove they don’t owe the money, when in fact it’s the other way around – the collector should be asked to produce documentation showing how the amount being claimed was arrived at.

It’s the same with rental deposits.

The deposit, in full or part, may be withheld by the landlord, or their agent, on a tenant’s departure, in order to remedy damage caused by the tenant.

But they can’t just refuse to refund the deposit, or a major chunk of it, by making a vague claim to having had to clean or repair the unit after the tenant’s departure.

The Rental Housing Act is specific about this, but I regularly get complaints from readers about the arbitrary withholding of rental deposits.

The latest went like this: Three friends moved into a Plumstead flat in January 2012, signed a two-year lease and paid a deposit of R4 500.

They moved out when the lease expired at the end of January.

“The flat was left clean and newly painted, but the landlord deducted R3 914 for cleaning, painting, electrical work, and lightbulbs, all unexplained and apparently not justified,” said the father of one of them.

“They also failed to pay interest of R480 on that deposit.”

Few tenants appear to know what the Rental Housing Act stipulates when it comes to withholding deposits. Which is a pity, because if they spent a few minutes researching the subject online, they’d know exactly what their rights are.

For starters, both you and the landlord or rental agent must both attend an entry and exit inspection – that’s key.

In other words, before you move in, you both go from room to room noting any defects, and when you move out, you do the same.

If you haven’t caused any damage, you must both sign your agreement on this, and then your deposit – usually a month’s rent – must be refunded to you within seven days.

If a wall needs to be repainted because you knocked nails into it, and it’s no longer in the pristine condition it was when you took occupation, that needs to be noted as well, in order for the cost of repainting that wall to be deducted from your deposit.

And here’s the really interesting bit – the act says that if the landlord fails to conduct an exit inspection in the presence of the tenant, this is taken as an acknowledgement by them – that’s the landlord – that the dwelling is in a good state and they must then be refunded the full deposit, plus interest.

It seems, especially in the case of rental agencies with scores, if not hundreds, of units on their books, that exit inspections are not routinely conducted, but deposits, in many cases, are withheld or “docked” anyway.

Which is illegal.

And what if a tenant is invited to an exit inspection and doesn’t show up? That’s covered by the act, too.

The landlord or agent is then obliged to inspect the unit in question within a week of the tenant vacating to assess any losses or damages, and may only deduct the cost of repairs or replacement from the security deposit upon proof of actual expenditure.

If the tenant is found, during the exit inspection, to have caused damage, the landlord or agent may deduct a sum from the deposit to cover any repairs or replacement of lost keys.

But they must produce receipts to substantiate the deductions if called upon to do so by the departed tenant, and the balance of the deposit must be refunded within 21 days of the lease’s expiry.

Also, the act requires the landlord or agent to deposit the tenant’s deposit in an interest-bearing account, and refund that amount with interest consistent with that applicable to a savings account.

Ultimately, as with any dispute, documentary proof is essential. Insist on those joint inspections when moving in or out of a unit to avoid squabbles over the refunding of your deposit.

And seek help from the Rental Housing Tribunal in your area if you feel your rights have been violated.

Google Rental Housing Tribunal South Africa for those details. – The Star