Wear and tear, and what’s fair when it comes to rental deposits

Paying a deposit on a rental can hurt the pocket of many people, but nothing hurts more than not getting your deposit back, especially when you do not know your rights as a tenant.

While there are grounds for deductions from a rental deposit by a landlord, these are normally limited to repairing damage to the property caused by the tenant, when a lease agreement is broken or rent is not paid.

But what steps should you take from the moment you have signed the lease, to the moment you have ended it?

First off, know that property inspections both prior to moving in – and once your lease has ended – are vital to securing your deposit.

A tenant has an obligation to return the property to the same condition it was first leased under, within reason.

However, often there can be disagreements between a landlord and tenant over who is responsible for wear and tear on a property, with some landlords taking chances on fair wear and tear.

Fair wear and tear is described as the deterioration in the condition of the leased premises caused by normal, everyday usage.

Wear and tear caused by the elements is also considered fair. In the court case of Arendse vs Badroodien 1971 (2) SA 16 C, the court had regard to the state of wooden floors in a leased premises, subject to a certain lease agreement.

The court stated that tenants had lived on the property for 6 years before rot in the floors had become evident and that it was just as likely as not that the rot had set in as a result of ‘fair wear and tear’.

The court ruled that the tenant was not liable for the repair.

However, where a tenant is aware of wear and tear post signing of a lease agreement, the tenant has a responsibility to report this to the landlord and not leave it to deteriorate further.

Damage to a property is defined as any deterioration outside of the accepted norm, and can also be defined as negligent or accidental destruction.

Examples include:

• Permanent carpet stains which cannot be cleaned professionally.

• Nails or picture hooks hammered into walls for hanging pictures or mirrors.

• Painting the walls a different colour without the landlord’s consent.

A lease agreement should clearly indicate the responsibilities of a tenant and landlord, including maintaining the property in good order.

Landlords are required by the Rental Housing Act to make sure the property is safe to occupy, clean and neat and that appliances like stoves, geysers, lights and taps are in working order before taking up of a lease agreement with a new tenant.

• Landlords are responsible for fixing any problems related to fair wear and tear so that the tenant has the use of the item. Good examples are geysers, door handles and locks, gate motors and swimming pool pumps. Also, the repair or replacement of such items needs to be attended to without undue delay.

• Tenants need to understand that the landlord’s responsibility is to hand over the property in a habitable condition – not to upgrade the property to luxury level.

• If wear and tear on carpets, for example, cause them to become frayed or start tearing, the landlord is obliged to replace the carpets.

• Tenants are not obliged to repair structural defects or to return the premises to a better overall condition than when they took occupation. However, steam-cleaning carpets because of dirt build-up is the responsibility of the tenants.

Grounds for refunding rental deposits are clearly set out in the Rental Housing Act (50 of 1999):

• Landlords must invest tenant deposits in an interest-bearing account for the duration of the lease. At the end of the lease, the landlord must pay over to the tenant all the interest earned in addition to the original deposit, after any deductions for damages. (Tenants may request proof of interest earned).

• The rental deposit must be refunded within 7 days of the final inspection if no repairs are needed, or within 14 days of repairs being completed.

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