Written for Property Poser

A reader has asked our Property Poser panel of experts several questions relating to the letting of a property and the deposit.

He says he and his wife are currently renting a townhouse, but can no longer afford the rent due to a change in their financial position. He wants to know what they can do to retain the deposit so that they can use it as a deposit to rent cheaper accommodation.

The reader says the letting agent does not seem in a hurry to find other tenants and he asks if they are allowed to involve other agents. He also wants to know if they are obligated to find other tenants or whether they just need to give a month’s notice to get the deposit back with interest.

Liesel Greyvenstein of Greyvensteins Nortier says everything depends on the stipulations in the lease agreement. The amount of the deposit, breach and the consequences thereof, notice periods and sub-letting would have been dealt with in this agreement.

“In order to retain the deposit, you would have had to pay the rent monthly and kept the property in the same condition you received it in,” explains Greyvenstein. “A lessee is entitled to interest on the deposit because the landlord (or rental agent) is obliged to invest the deposit in an interest bearing account in terms of section 5(d) of the Rental Housing Act 50 of 1999.

“I would suggest notifying, in writing, the estate agent and the owner of your current situation and request them to be released from the lease agreement after you have given him or her one months’ written notice.

“The lessor would however be entitled to enforce the lease, as this is a legal contract and hold the reader accountable for any damages that he or she suffers as a result of the breach, this being apart from the eviction order that can be obtained.”
Jaco Rademeyer of Jaco Rademeyer Estates explains that the purpose of a deposit is to cover any rent arrears, money owed to the landlord or expenses incurred when restoring the property to the state it was in when the lease started.

“It is very important that the landlord and the tenant inspect the property jointly before the tenant moves in,” says Rademeyer. “They must inspect the property again when the lease ends to compare the condition of the property with the original inspection report.

“If the landlord does not inspect the property with the tenant, he or she is deemed to have admitted that it is in a satisfactory state.”

Rademeyer says the period the landlord has to refund the deposit at the end of the lease, depends on the restoration work needed.

“If no repairs are necessary, it must be refunded within seven days, but if repair work has to be done, the landlord must refund the deposit not later than 21 days after expiration of the lease. I also want to point out that the deposit may only be used to pay the last month’s rent if the landlord agreed to it.”

With regard to the reader’s question about using another agent, Rademeyer says he may not ask another agent to let the property or find a tenant, because the current letting agent has a mandate from the owner, authorising him or her to let the property out.

He suggests that the reader inquire from the letting agent whether he may advertise the property at his own expense to try and find a suitable tenant.

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