8 need-to-knows on tenant rights

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07 Jun 2013

Choosing to rent a home instead of buying comes with some risks if you don’t understand your rights and obligations as a tenant. 

Although verbal agreements are binding, getting everything in writing is preferable as there can be no chance of miscommunication and it is then easier to prove if either party has not stuck to the agreement.

This is according to Michael Bauer, general manager of property management company IHFM, who says the Rental Housing Act is the basis of all written lease agreements but the agreement between the tenant and the landlord is also important. 

There is a basic list to stick to as a tenant, to avoid miscommunication and possible disputes with the landlord. This is to: 

1. Get the lease agreement in writing

Although verbal agreements are binding, getting everything in writing is preferable as there can be no chance of miscommunication and it is then easier to prove if either party has not stuck to the agreement. “You are within your rights to ask for a written agreement and the landlord must provide one if you ask for this,” says Bauer. 

The lease for residential property usually runs from six to twelve months at a time (but can of course be longer) and will include important details such as the rental amount, the proposed increase by a certain date (usually on the renewal) and whether water and electricity is payable to the landlord or direct to the municipality. 

“Check that this is clear and also check whether you will be able to stay on in the unit if you choose to renew – you can choose to stay on a month to month basis or sign a new lease for a fixed period,” he says. 

2. Inspect the property before you move in and before you move out – with the landlord present. 

List all items that are damaged or broken before moving in and, if possible, take photos so that there is visible proof. If this inspection isn’t done, the tenant could be held liable for the cost of repairs later. 

When leaving a rented property, the landlord should inspect the unit at least three days before the tenant is meant to move out. This gives enough time, if there is any damage found, for the tenant to arrange repairs or things to be returned to the state in which the unit was found. 

3. Pay the deposit to the landlord

The deposit paid to the landlord will vary but it is usually one to two months' rent. The Landlord must keep this in a separate bank account where it will accrue interest and this interest must be paid over to the tenant when the deposit is returned. 

On moving out of the rented property, the landlord can, if necessary, deduct the costs of any repairs from the refund but he must pay the balance or the whole refund within 14 days of the home being vacated. 

Tenants may not refuse to pay the last month’s rent in lieu of their deposit refund. 

4. Notice period if cancelling the lease

Understand your exit, says Bauer. Leases usually state that one calendar month should be given if cancelling a lease but that can differ depending the structure of your lease agreement. 

5. Obligations to the landlord

“Your obligation is to pay your rent in full and on time,” he says. “You must also keep the home in the condition in which you found it and, if living in a complex, stick to the rules of that complex.” 

6. The landlord’s obligations to the tenant

Unless there is an agreement to the contrary, the landlord must maintain the property. He is entitled to inspect the property but he must give the tenant ample warning and make an appointment to do so. 

7. If the tenant can’t pay the rent

If the tenant is late with his rental payment, the landlord must give him a “notice of breach”, which states the breach of the lease agreement. He should, however, give the tenant a chance to pay the amount owed and if that is not done he can then sue for the outstanding amount as well as the loss of income for the duration of the remainder of the lease. 

“It is always best, if you cannot afford to pay your rent to speak to your landlord before it gets to that stage," says Bauer. "If you ask to be released from the lease, the landlord is more likely to be willing to do this without trying to recoup costs or allowing you to find replacement tenants to take over the lease.” 

The landlord may not lock the tenant out of the home, change the locks or remove any items belonging to the tenant. 

“If you do find yourself locked out, don’t try to break back in as you can then be charged with malicious damage to the property, rather call the police” warns Bauer. 

8. Subletting the property

If the tenant is considering signing a long lease but intending to rent out one of the rooms to help subsidise the costs or needing to sublet to another person because he has to move to another area or can’t afford the rent anymore, he must ask for the landlord’s permission first. 

“If there is a chance that this might happen, try to get this permission written into the lease, so that you can sign over the rights and duties of that lease to another tenant,” he says. 

The final resort in any rental dispute is to go to the Rental Housing Tribunal, which has the same power as a magistrate’s court - but it is the tenant’s responsibility to understand the lease properly and stick to it, says Bauer.  

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