I initiated a dispute with the rental ho...

Asked by Ellen on 05-06-2023 00:57:28
Question posted in the Landlord Tenant Law category relating to Western Cape

I initiated a dispute with the rental housing tribunal regarding our previous landlord failing to return our deposit to us upon vacating the premise.  Handover was 27 August 2022.  Dispute opened 6 October 22. We have had a mediation session via zoom on 18 November 22 which failed to come to a resolution by the deadline given by the mediator of 25 Nov 22.  We have been subpoenaed to the magistrates court on 13 June 2023 for a final ruling.  

I would like some assistance preparing for addressing the magistrate as the landlord has acted illegally in his deductions from our deposit and we will have to defend ourselves at the court session. He has 4 points of issue: 1. Final municipal bill - this was not provided to us until after the failed mediation, we dont dispute our liability but the incorrect amount was deducted according to the deposit statement provided.2. garden maintenance - the quote to fix the overgrown garden was sought a full 2 months after we handed back the keys.  I maintain it was fine upon moving out, as we paid out of our pocket for a gardener 2 days a week every week of our tenancy and he waited 2 months to get that quote after we opened a dispute.3. repair/painting walls - i provided photographic proof of existing screws in walls and paint chips for some walls, but this was not accepted by the agent. There is a conflict of interest in the choice of repairer but I've not the space to detail here, but the incoming inspection did not detail if screws in walls or not, outgoing inspection decided to hold us accountable for every nail despite proof otherwise 4. carpets replacement - instead of quoting on replacing carpets with like carpet, the landlord used a new agent to facilitate installation of laminate flooring instead, claiming the originals were ruined.  he sought a letter of opinion in November from the installers saying the original carpet was unsalvageable, but not a quote at the time of our vacating.  I have a letter from the company who cleaned the carpet professionally 10 days before returning keys stating they'd have come back for free to clean again if unhappy with results, but i was not told of the issue with carpet until after i opened a dispute over the deposit.  

I have one issue of my own, which is the agent appears to have forged the outgoing inspection document as I know I did not sign the document when we did the outgoing inspection, but she has provided a copy with my signature on it.  Further, there is a third copy which the landlord was given, that has a different first page omitting my name as i cannot legally sign a lease but originally i was listed as a co-tenant on the incoming inspection document, and his copy has 2 "page 10" where as mine has only 1.  I am most uncertain how i address this apparent forgery of the outgoing report, that part I need most help with. 

Further information relating to Question:

The conflict of interest is partway during our tenancy, the agency facilitating our lease was sold, so we had a different agent handling our incoming inspection and our outgoing inspection. They did a handover but we were not involved in that discussion. After vacating, the landlord chose to contract the incoming agent to make the repairs to the walls. The outgoing agent based her report on the incoming report, which the incoming agent has since stated he found to be very broad in scope, thus only commented the general appearance of the walls rather than note there were screws or nails let alone count how many. Because he then performed the repair work, he of course now states he does not recall the exact state of the walls at the start, commenting only that he had provided detailed descriptions with some photographs that were stored in a google drive account under the control of the agency that got sold. The new agent claims this google drive account cannot be accessed, so we cannot know what the incoming agent wrote there. I have only a few photos of the walls at move in but they prove existing damage, but the outgoing agent rejected them as proof despite exif data proving when they were taken

Message from the Lawyer

Posted by Att. Patrick on 05-06-2023 11:33:39

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship.

I think what you need to do is to go quite hard on the outgoing inspection report and argue that you can only be held liable for issues which are mentioned on the report, and that if the landlord has delayed in attending to any of the alleged issues at the premises, then the landlord only has himself to blame.

Re 1) I think that you will need to offer to pay the correct figure of the account. If the landlord has deducted more than this, then he must refund you that portion.

Re 2) I think that the landlord is 100% wrong on the garden aspect. I think that your argument of leaving the garden in an excellent condition when you vacated is the end of the matter. If the landlord left it to grow for 2 months, that’s his issue. The magistrate must refuse this claim by the landlord.

Re 3) the issue here is that you should have insisted that the incoming report listed the screws. Technically, you’re on the back foot here, but hopefully with your photographic evidence the magistrate will understand this. You can’t be held liable for pre-existing screws, etc.

Re 4) The landlord is NOT entitled to replacement carpets. Again, you need to argue that if the landlord wanted to clean, or replace, the carpets, he should have obtained quotes within 7 days of you leaving. It is NOT allowable for him to wait weeks and then decide to replace carpets.

If you didn’t sign the outgoing inspection report, then you must raise that with the magistrate. Most definitely. It is the landlord’s document, so the landlord will need to prove that you signed it.

I understand the issues about the conflict of interest. The best thing that you can do is to ensure that you have photographic proof of the screws and the state of the walls, etc, when you moved in, compared to when you moved out.

Remember that the default position is that you are entitled to the return of ALL of your deposit, unless the landlord can prove that he is entitled to claim some of the deposit for a legitimate purpose. So it is really the landlord's job to prove all of these things. If he can't prove something, then he loses that part of his claim. You can defend any part that you want. 

Your best case argument is that the landlord was supposed to finalise all repairs and repay your deposit within 7 days - and he did not. Therefore he can't come along now, months later, and try claim.

Message from the client

I forgot to mention, on the account statement the agent sent 23 Feb 23 to someone at the tribunal, who then forwarded her attachment to us, over the duration of our lease we can see the interest that was accrued each month, but then there is a 'service charge' deducted each month. Is this legal? Our lease document makes no mention of administrative fees for the tennants account beyond the initial application fee. I feel like if the agent charges a fee for looking after our deposit, that is something the landlord must be liable for if there is no mention of it being payable by us. The statement shows approx R670 balance remaining in that account that hasn't been claimed upon, that would be undisputed as belong to us still but hasn't been paid to us to date. Factor in the 730 of fees charged to date to maintain that account, that is nearly R1500 that hasn't been disputed yet still not paid out to us. Is there any opportunity to seek compensation on top of the deposit amount for unlawfully withholding the portion he doesn't dispute at the hearing? Or would that require a civil case separately pursued? I thought I read somewhere you are due 3 times any illegally withheld deposit but I'm not sure if that is true.

Message from the Lawyer

Posted by Att. Patrick on 05-06-2023 12:32:35

What is the service charge for? Because unless you signed an agreement with the landlord that the landlord (or his agent) could levy a service charge for managing the deposit, no, it is not legal. 

Is there any opportunity to seek compensation on top of the deposit amount for unlawfully withholding the portion he doesn't dispute at the hearing? --> Yes, it is called interest. You must demand that they pay interest on all amounts which they end up owing you.

I thought I read somewhere you are due 3 times any illegally withheld deposit but I'm not sure if that is true. --> No, there is no law which says that. 

Answer Accepted

This answer was accepted on 05-06-2023 12:38:28

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