08 Oct 2012
A Property24 reader asks:
A Property24 reader asks when the landlord can use the tenant's deposit for repairs or maintenance to the property.
Marlon Shevelew, a rental property attorney at Marlon Shevelew and Associates advises:
Tenants who pay their rent on time and leave the home clean and damage-free often believe they are going to get their full security deposit back when they move out of rented accommodation.
They then get a shock when the landlord gives them a laundry list of tiny charges for what the tenant believes constitute “fair wear and tear.
A landlord may not charge a tenant for “fair wear and tear”, which is defined as “deterioration or depreciation in the value of the subject matter by ordinary and reasonable use" and the Rental Housing Act specifically excludes the tenant’s liability for this.
Placing the responsibility on the tenant for damages (whether in a residential or commercial lease) would also probably violate the prohibition of unfair, unreasonable and unjust contract terms contained in the Consumer Protection Act.
It usually boils down to a difference of opinion between the landlord and tenant on what constitutes fair wear and tear.
The general rule is that if the tenant has damaged something that does not normally wear out or has substantially shortened the life of something that does wear out, the tenant may be charged the pro-rated cost of the item, taking into account how old the item was, how long it might have lasted otherwise and the cost of replacement.
Here are a few guidelines:
1. The ‘reasonable’ costs of cleaning the premises may be deducted from the tenant's deposit, which could include such things as:
- eliminating flea infestations left behind by the tenant's pets
- oven cleaning
- removing decals from walls or windows
- removing mildew in bathrooms
- defrosting the refrigerator
2. A landlord may legally charge for any cleaning necessary to satisfy the ‘average’ or ‘reasonable’ incoming tenant.
3. A landlord cannot, therefore, charge a former tenant for cleaning carpets, drapes or walls to a ‘squeaky clean’ condition to prepare the unit for the next tenant.
Instead, the landlord must look at how well each particular tenant cleaned the rental unit on their departure, charging cleaning costs only if the rental unit (or a portion of it) was left in a clearly substandard condition.
4. Ordinary wear and tear to carpets or drapes does not justify a charge against the tenant's deposit.
Such ordinary wear and tear would include simple wearing down of the carpets or drapes because of normal use or aging, and would include moderate dirt or spotting.
In contrast, large rips or indelible stains would justify a deduction from the tenant's deposit for replacing or repairing the carpet or drapes.
5. To be fair, the amount of the deduction should take into consideration the item's age compared to the expected time of use.
For example, if a tenant has damaged beyond repair an eight-year-old carpet that had a life expectancy of ten years and would cost R1 000 to replace, then the landlord could charge only R200 for the two years’ worth of life (use) that would have remained in the carpet had it not been damaged.
When it comes to the repainting of walls, a formula used successfully when a tenant moves out and repainting is necessary:
The time in the unit over the fraction of costs to be deducted – for example, six months in the unit would constitute full costs of labour and materials.
If it was six months to one year, then two thirds of the cost, if it is one to two years, then one third of the cost and if it’s two years or more then no deductions would be made for painting.
The reason for this is that paint has a life expectancy of three years and it would be “fair wear and tear” if the property needed repainting.
6. If there is damage to a wall, such as minor marks or nicks, it is considered the landlord's responsibility as fair wear and tear. Therefore, the tenant should not be charged for repairing these.
However, if there are a large number of holes in the wall and ceiling that require filling with plaster or patching and repainting, this could justify withholding money from the deposit, depending upon whether the unit needed repainting anyway or had just been painted.
Normally, large marks or paint gouges are the responsibility of the tenant.
An in-depth incoming inspection is important and this should be done with the tenant and the owner present and it is recommended that photos be taken to record the state of the premises in order to avoid costly disagreements later, adds Shevelew.
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