Durban - An owner or landlord must choose an agent wisely, ensuring his or her credentials.
The action of an incompetent agent or a con artist can lead to consequences for other parties as well.
Last week, a tenant was startled the morning after he moved into a flat when five men gained entry to the property. The tenant and his wife were asked to move out of the flat because they were unlawful occupants.
The landlord was persuaded by an “agent” to allow him to advertise the flat for a small commission. Two tenants responded separately to the advertisement and, unknown to each other, met the agent. In due course, each paid a damage deposit and a month’s rental in advance.
The agent instructed the building supervisor to hand over the keys to the second tenant. The tenant with access to the building took occupation of the flat.
The landlord conceded that the tenant was in lawful occupation and it was the agent who was at fault. The landlord has a claim against the agent and the other tenant will have a damage claim against the landlord. If the landlord persisted that the tenant was in unlawful occupation, he needed to approach the court or lay a charge of trespass.
Before engaging the service of an estate agent, the owner or landlord must verify that the agent has a valid licence to operate the agency (in possession of a valid fidelity fund certificate). A letting agent, when appointed by an owner or a landlord, plays a crucial role in a tenant-landlord relationship, or at least in initiating one.
A letting or rental agent does not have to be an estate agent, but must be registered with the Estate Agency Affairs Board and must have a valid fidelity fund certificate. It is advisable to establish the agent’s credentials, performance and portfolio of the property market. The owner should also request a list of old and current clients to verify the capability and efficiency of the agent.
The extent of the mandate will determine what is expected of the agent. It could be one or several duties, or a combination that may include advertising the dwelling, screening of the prospective tenant, drawing up of a lease contract, rent collection and maintenance.
A copy of the terms of the mandate relating to the agent and the tenant, or a summary of it, should be attached to the written contract or, in the case of an oral agreement, handed to the tenant. This would inform the tenant what the agent’s responsibilities and duties are and would protect the landlord against a disruptive tenant who would want to apportion blame to the agent or deliberately want to create confusion.
It is the duty of the landlord or agent to ensure that the dwelling is let for the full use and enjoyment of the tenant for a temporary duration.
The Rental Housing Act 50 of 1999 regulates the relationship between tenant and landlord, having modified certain aspects of the common law.
Certain provisions of the act can operate independent of provincial Rental Housing Tribunals. These are the deemed provisions in terms of sections 4 and 5 in Chapter 3, titled “Relations between tenants and landlords”, and the general provisions in Chapter 5 dealing with “Offences and penalties” (section 16).
A tenant or landlord can approach any court where a tribunal does not exist, or can approach a court to enforce the provisions of these sections in the absence of an unfair practice.
Section 3 contains the rights and duties under general provisions, such as the recovery of unpaid rentals, discriminating against a prospective tenant, or invading the tenant’s right to privacy during the duration of the lease, the landlord’s right to prompt and regular rental income, to terminate a lease and to claim compensation for damage to the dwelling.
Discrimination is extended to the tenant’s household and bona fide visitors; and a wide definition of discrimination is given that includes race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.
Provisions pertaining to leases include receipts for all payments received from a tenant, inspection of the dwelling; reducing to writing a verbal lease if requested by a tenant, what must be included in a lease and copies of the house rules and defects to be given to a tenant.
Offences and penalties relate to the failure by a tenant or landlord to comply with the provisions of section 4 and section 5(2) and (9) a request made by the tribunal and its ruling.
The landlord needs to pay diligent attention to the inspection of the dwelling to ensure it is not damaged or vandalised or, in the event that this occurs, to be able to have a claim against the tenant. The landlord can bring an action through the Tribunal or, if aggrieved with its procedure, have the ruling taken on review.
In the case of an agent who is authorised by the landlord to manage the lease, but who fails to carry out an inspection, the landlord will have a civil claim against the agent. It is unlikely that the landlord will succeed in lodging a complaint against the tenant at the tribunal for damage to the property. The tribunal has no jurisdiction between the landlord and the third party (agent) and, accordingly, cannot provide any relief.
In summary, the owner or landlord should identify a reputable agent and confirm the duties and obligations of the parties. A written document, in simple, clear language, without ambiguities and without unnecessary legal jargon, that spells out the terms and conditions between the contracting parties, will go a long way to ensuring success.
Sayed Iqbal Mohamed is the chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. For advice, contact Pretty Gumede or Loshni Naidooat 031 304 6451 / pretty@ocr.org.za or loshni@ocr.org.za