Asked by the Customer on 20-05-2014 11:25:51
Question posted in the Landlord Tenant Law category relating to Western Cape
Question posted in the Landlord Tenant Law category relating to Western Cape
Firstly:
My parents find them in a situation where their landlord (soon to be ex-landlord) has not invested their deposit in an interest bearing account. We understood that the Act requires that the landlord to do so? Furthermore this is also stipulated in their lease agreement with the said landlord.
What are the ramifications of the landlords neglect to do so? Does this constitute breach of contract?
Secondly:
During their before-occupation-inspection of the rental property it was determined that the garage doors (which are not automated) are damaged/broken to the extend that it is very difficult to open and close and even dangerous. It also cannot lock properly form either the inside or the outside. This defect was listed on the defects list of which the landlord has a copy. The landlord verbally agreed to get is fixed as soon as possible and on this premise my parents agreed to move in. The landlord failed to repair it after numerous requests by the tenants (my parents) and the letting agency do so.
Does this constitute a material breach of contract by the landlord? Their lease agreement stipulates that they (the tenants) may cancel the lease without penalty if the landlord does not remedy the breach within 20 business days of notification being sent to the landlord to do so– said notification has been send to him.
Thirdly:
I seems the landlord are determined not to refund their deposit either with of without the interest it was suppose to accumulate. (They are not in arrears with their rental payments and did not cause any damage to the property.)
What are the remedies available to them?
My parents find them in a situation where their landlord (soon to be ex-landlord) has not invested their deposit in an interest bearing account. We understood that the Act requires that the landlord to do so? Furthermore this is also stipulated in their lease agreement with the said landlord.
What are the ramifications of the landlords neglect to do so? Does this constitute breach of contract?
Secondly:
During their before-occupation-inspection of the rental property it was determined that the garage doors (which are not automated) are damaged/broken to the extend that it is very difficult to open and close and even dangerous. It also cannot lock properly form either the inside or the outside. This defect was listed on the defects list of which the landlord has a copy. The landlord verbally agreed to get is fixed as soon as possible and on this premise my parents agreed to move in. The landlord failed to repair it after numerous requests by the tenants (my parents) and the letting agency do so.
Does this constitute a material breach of contract by the landlord? Their lease agreement stipulates that they (the tenants) may cancel the lease without penalty if the landlord does not remedy the breach within 20 business days of notification being sent to the landlord to do so– said notification has been send to him.
Thirdly:
I seems the landlord are determined not to refund their deposit either with of without the interest it was suppose to accumulate. (They are not in arrears with their rental payments and did not cause any damage to the property.)
What are the remedies available to them?
Message from the Attorney
Posted by Att. Patrick on 20-05-2014 12:04:03
Hi there and thank you for your question,
It is a requirement in terms of the Act that a landlord must invest a tenant's deposit in an interest-bearing account. Once the tenant has paid his deposit the Act requires the landlord to issue a detailed receipt and then invest the deposit in an interest-bearing account for the benefit of the tenant. The landlord is then obliged to provide written proof of the accrued interest to the tenant upon request.
Upon the termination of the lease agreement, the landlord is entitled to use a portion of the deposit to fix any damage to the property that the tenant caused. The balance of the deposit, plus interest, then needs to be paid back to the tenant. The length of time is depended on the repairs necessary being seven days after expiration of the lease if no repairs and 14 days if there are repairs to be done. If a tenant refuses to carry out a joint inspection of the premises before the lease expires, the landlord has seven days thereafter to complete an inspection of his own. The landlord must then attend to any necessary repairs and refund the balance of the deposit, if any, to the tenant within 21 days of the expiration of the lease.
If the landlord has failed to invest the deposit in an interest-bearing account, it is not necessarily a breach of the lease agreement, but it is a breach of the requirements of the Act.
If the "lost" interest amounts to a substantial amount, I would suggest that your parents lodge a dispute with the Western Cape Rental Housing Tribunal.
Here is a link to their website: http://www.westerncape.gov.za/general-publication/rental-housing-tribunal
And here is a link to the claim forms: http://www.westerncape.gov.za/general-publication/complaint-forms-rental-housing-tribunal
I would suggest that your parents complete claim form F(a), and then explain that no interest was refunded. Let the landlord explain why there was no interest refunded!
In relation to the garage door issues. Unfortunately I don't think that (normally) the landlord's failure to fix the garage doors will be considered to be a material breach of the lease agreement. It could be argued however that it is a material breach, especially since the landlord specifically agreed to fix the doors and failed to do so, and the tenants advised the landlord that the doors were important to them before they even moved into the property. I would suggest that you argue that it is a material breach, and let the landlord argue otherwise.
Has the landlord accepted notice of the cancellation? i.e. has the landlord agreed that the lease agreement is cancelled?
The landlord is required to return the deposit, plus interest. There is no two ways about that. Again, if the landlord is refusing, then your parents should fill in the same claim forms as detailed above - especially if they are not in arrears with the monthly rental.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
It is a requirement in terms of the Act that a landlord must invest a tenant's deposit in an interest-bearing account. Once the tenant has paid his deposit the Act requires the landlord to issue a detailed receipt and then invest the deposit in an interest-bearing account for the benefit of the tenant. The landlord is then obliged to provide written proof of the accrued interest to the tenant upon request.
Upon the termination of the lease agreement, the landlord is entitled to use a portion of the deposit to fix any damage to the property that the tenant caused. The balance of the deposit, plus interest, then needs to be paid back to the tenant. The length of time is depended on the repairs necessary being seven days after expiration of the lease if no repairs and 14 days if there are repairs to be done. If a tenant refuses to carry out a joint inspection of the premises before the lease expires, the landlord has seven days thereafter to complete an inspection of his own. The landlord must then attend to any necessary repairs and refund the balance of the deposit, if any, to the tenant within 21 days of the expiration of the lease.
If the landlord has failed to invest the deposit in an interest-bearing account, it is not necessarily a breach of the lease agreement, but it is a breach of the requirements of the Act.
If the "lost" interest amounts to a substantial amount, I would suggest that your parents lodge a dispute with the Western Cape Rental Housing Tribunal.
Here is a link to their website: http://www.westerncape.gov.za/general-publication/rental-housing-tribunal
And here is a link to the claim forms: http://www.westerncape.gov.za/general-publication/complaint-forms-rental-housing-tribunal
I would suggest that your parents complete claim form F(a), and then explain that no interest was refunded. Let the landlord explain why there was no interest refunded!
In relation to the garage door issues. Unfortunately I don't think that (normally) the landlord's failure to fix the garage doors will be considered to be a material breach of the lease agreement. It could be argued however that it is a material breach, especially since the landlord specifically agreed to fix the doors and failed to do so, and the tenants advised the landlord that the doors were important to them before they even moved into the property. I would suggest that you argue that it is a material breach, and let the landlord argue otherwise.
Has the landlord accepted notice of the cancellation? i.e. has the landlord agreed that the lease agreement is cancelled?
The landlord is required to return the deposit, plus interest. There is no two ways about that. Again, if the landlord is refusing, then your parents should fill in the same claim forms as detailed above - especially if they are not in arrears with the monthly rental.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Just like to have some clarity on the following:
"If the landlord has failed to invest the deposit in an interest-bearing account, it is not necessarily a breach of the lease agreement, but it is a breach of the requirements of the Act."
If this was one of the lease agreement stipulations - why would it not necessarily be a breach of that agreement?
What are the ramifications if any of the landlord being in breach of the Act?
Can one argue that the failure to repair the garage doors substantially affect the use and enjoyment of the dwelling and therefor can be considered a material breach? (they are elderly people - one who are dependent on a walking stick - who has to get onto a chair every time they need to open the garage door)
Thank you.
"If the landlord has failed to invest the deposit in an interest-bearing account, it is not necessarily a breach of the lease agreement, but it is a breach of the requirements of the Act."
If this was one of the lease agreement stipulations - why would it not necessarily be a breach of that agreement?
What are the ramifications if any of the landlord being in breach of the Act?
Can one argue that the failure to repair the garage doors substantially affect the use and enjoyment of the dwelling and therefor can be considered a material breach? (they are elderly people - one who are dependent on a walking stick - who has to get onto a chair every time they need to open the garage door)
Thank you.
Message from the Attorney
Posted by Att. Patrick on 20-05-2014 22:01:39
Hi there,
Apologies, I did not see that you had said that "Furthermore this is also stipulated in their lease agreement with the said landlord." If it is stated in the lease agreement that the landlord must invest the deposit in an interest-bearing account, and the landlord fails to do so, then it would be a breach of the agreement. In that instance you might be required to give the landlord written notice, providing the landlord with 7 days to remedy his breach. If he fails or refuses to remedy the breach, then you would be entitled to cancel the lease agreement.
The garage door is a difficult one. Would you say that a broken cupboard door would substantially affect the use and enjoyment of the dwelling and therefor can be considered a material breach? Probably not. So where do you draw the line. A faulty / leaky roof - yes. A broken front door - yes. But a broken garage door that (still works) but is difficult to open and close - it is an argument. My advice stands --> write to the landlord and put them to notice regarding the breach, and give them 7 days to fix it. If the landlord doesn't, then cancel.
Your parents could - if they wanted to - fix the garage door themselves and then deduct the expenses from the next month's rental, but you would need to first threaten this with the landlord before just unilaterally doing it.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Apologies, I did not see that you had said that "Furthermore this is also stipulated in their lease agreement with the said landlord." If it is stated in the lease agreement that the landlord must invest the deposit in an interest-bearing account, and the landlord fails to do so, then it would be a breach of the agreement. In that instance you might be required to give the landlord written notice, providing the landlord with 7 days to remedy his breach. If he fails or refuses to remedy the breach, then you would be entitled to cancel the lease agreement.
The garage door is a difficult one. Would you say that a broken cupboard door would substantially affect the use and enjoyment of the dwelling and therefor can be considered a material breach? Probably not. So where do you draw the line. A faulty / leaky roof - yes. A broken front door - yes. But a broken garage door that (still works) but is difficult to open and close - it is an argument. My advice stands --> write to the landlord and put them to notice regarding the breach, and give them 7 days to fix it. If the landlord doesn't, then cancel.
Your parents could - if they wanted to - fix the garage door themselves and then deduct the expenses from the next month's rental, but you would need to first threaten this with the landlord before just unilaterally doing it.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
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