How to ensure you get your rental deposit back

When you move into a property, insist on an inspection which is put in writing and signed by both you and your landlord. Picture: 123RF/ANDRIY POPOV
When you move into a property, insist on an inspection which is put in writing and signed by both you and your landlord. Picture: 123RF/ANDRIY POPOV

When a landlord deducts money from your deposit, know your rights.

Cape Town teacher Elouise Meyer was horrified when instead of getting back her deposit of R6,000, her landlord presented her with an invoice for R40. 

Meyer says her landlord told her explicitly not to clean or make repairs to the property, which she had occupied for the past nine years, because he planned to renovate and sell.

After she vacated, he duly did repairs and renovations and passed on some of the costs to her. After challenging her landlord, he offered to give her R1,000 cash as a goodwill gesture. She rejected it and is reporting the landlord to the Rental Housing Tribunal.

University of Cape Town PhD student Gustav Mbeha and his flatmate Daniel Abeka had R5,000 deducted from their deposit for replacement of an old carpet and repairs to a tap.

This was despite assurances to them during their outgoing inspection that no damages would be charged to them.

Trudie Broekmann, an attorney who specialises in consumer law, describes such unlawful deductions as “typical” of landlords who either don’t know the law or think they can get away with flouting it. 

Meyer’s landlord did a joint inspection of the property with her when she moved in but failed to do one when she moved out.

“If the landlord doesn’t inspect the property in the presence of the tenant, the Rental Housing Act says that this is regarded as an acknowledgement by the landlord that the property is in a good state and the landlord will have no further claim against the tenant. The landlord must then refund the full deposit with interest,” Broekmann says. 

Landlords are required by law to invest your deposit in an interest-bearing account. Even if it wasn’t in fact done, the landlord is liable to you for all the interest the deposit would have earned if it was properly invested in an interest-bearing account, she says. 

The Act makes it clear that tenants are liable only for damages caused by them, not for wear and tear on furnishings and fittings.
Consumer law attorney Trudie Broekmann

Therefore, in Meyer’s case, her landlord owes her a full deposit plus the interest that would have accrued had it been invested over nine years. 

Broekmann, who has served as a member of the Western Cape Rental Housing Tribunal, says that at the time the tribunal awarded an average interest rate of around 4.5% a year where the landlord failed to invest the deposit into an interest-bearing account.

In the case of Abeka and Mbeha, she says the deductions made by their former landlord are not justified because they are for maintenance, which is for the landlord’s account. “The Act makes it clear that tenants are liable only for damages caused by them, not for wear and tear on furnishings and fittings.” 

The landlord cannot charge you for wear and tear that causes the geyser to burst or a pipe to leak, Broekmann says. If you stain a carpet, which has to be replaced, but the carpet was already halfway through its lifespan, the landlord can only claim 50% of the reasonable replacement cost of the carpet from you. 

Abeka and Mbeha are due their full deposit with interest of R981, she says. They are reporting their landlord to the tribunal.

The failure of landlords to refund deposits and landlords giving unlawful notice are among the most common complaints that the Western Cape Rental Housing Tribunal receives from tenants, Andrea van der Bergh, the assistant director of tribunal hearing support, says.

“Although there are landlords who are ignorant of rental housing legislation and blatantly disregard the law, there are tenants who do the same,” she says.

THE TRIBUNAL VS THE COURTS

There are numerous reasons for using the services of the Rental Housing Tribunal instead of seeking relief from the Magistrate’s Court. The benefits include:

*The service provided by the tribunal is free;
* Complaints lodged with the tribunal must be resolved within three months;
* The procedure is simple;
* You don’t need to appoint an attorney to act on your behalf;
* Complaints may be lodged by mail, fax, or at an information office in your province. In KwaZulu-Natal, for example, 41 out of 44 local municipalities have established rental housing information offices, according to the KZN tribunal’s website.

Lawful deductions

When you cause damage to property during the lease period, the landlord is entitled to deduct “the reasonable cost” of repairing the damage. Broekmann says the receipts which provide evidence of the landlord’s repair costs must be made available to you for inspection. 

“If your landlord doesn’t provide you with receipts for the repairs / replacement of items, then he is not entitled to deduct that cost from the deposit.” 

The landlord may also deduct any unpaid rental, for example if you stay after the lease ends, the landlord can charge you  pro rata rent by dividing the monthly rental by the number of days in the month and multiplying by the days up to the last day all of your goods were removed. The landlord can also take the last month’s electricity and water (if that is not included in the rental) from your deposit, if you, as the tenant, has not already paid it. 

The balance of the deposit plus interest must be refunded to the tenant not later than 21 days after the lease ended. 

Broekmann offers the following advice to tenants

  • When you move into a property, insist on an inspection which is put in writing and signed by both you and your landlord. 
  • Take date-stamped photos of every part of the property and keep them safe. 
  • Record offers and undertakings by the landlord (like “we are gutting the place when you move out, so we’re not holding you liable for any damages”) in writing, e.g. by email to the landlord while it is still fresh in your memory. 
  • If you’re unhappy with the invoices the landlord sends you for repair costs, get two or three of your own (lower) quotes, and offer to pay the landlord the average. 
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