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The importance of Incoming and Outgoing Inspections – for both the Landlord and the Tenant

One of the biggest disputes between landlords and tenants usually concerns the return of the deposit, once the tenant has vacated the leased premises. One of the best ways to avoid such a dispute is to ensure that a proper incoming and outgoing inspection is done, by the landlord and the tenant jointly.

The Rental Housing Act 50 of 1999 (“the RHA”) in fact requires incoming and outgoing inspections to take place. Section 5(3)(e) states that a landlord and tenant must jointly, and before the tenant moves in, inspect the premises to determine the condition of the premises and note any defects or damage to the property. Likewise, section 5(3)(f) provides that three days prior to the tenant vacating the leased premises, the landlord and tenant must again jointly inspect the premises to determine whether the tenant caused any damage.

A tenant is liable for any damage caused to the property, during the course of the lease, fair wear and tear excepted. (For more on fair wear and tear see our April blog post http://bengroot.co.za/2018/05/02/what-constitutes-fair-wear-and-tear/). It is thus crucially important to be able to compare the state of the premises prior to the tenant moving in and once the tenant has vacated. Consequently, the parties need to do a proper inspection of the premises, noting the overall condition of the premises, along with providing supporting photographs. Special attention should be paid to the state of the carpets, any nails that are already in the walls, and light and plug fittings. Irrespective of how small the defect is, it is important to note it, as small defects can add up in the end.

Once the inspection is done, the landlord needs to document the inspection, including a list of all the defects, along with the supporting photographs. Both parties need to sign the document, and each party needs to receive and keep a copy thereof, to use for comparison at the outgoing inspection. When renting out furnished premises, it is imperative to also provide the tenant with a detailed inventory, including even the most minor items such as soap dishes and basin plugs. The tenant is also responsible to check the inventory and immediately report any missing items to the landlord, otherwise they will be liable for the cost of replacing the item.

The tenant also has a responsibility to report any damage or defects, that arise during the course of the lease, to the landlord as soon as possible. This allows the landlord to make the necessary repairs as soon as possible. Even if the tenant is not responsible for the damage or repairs, if the tenant waits too long to report the damage, and the damage gets worse, the tenant may be liable for part of the repair costs.

As per section 5(3)(j) of the RHA, should the landlord not attend either inspection, in the presence of the tenant, the landlord acknowledges that the premises is in a good and proper state of repair. In such an instance the landlord will not be allowed to appropriate the tenant’s deposit to pay for any damages. Likewise, according to section 5(3)(k), should the tenant not attend an inspection with the landlord, the landlord must within seven days of expiration of the lease, assess the damages and deduct the amount from the deposit. The logic of this is rather sound: if the landlord did not attend the inspection, the cannot prove that the tenant caused the damage; if the tenant does not attend the inspection, they cannot prove that the damage was already there. Irrespective of whether the damage is assessed with or without the tenant present, the landlord has a duty to provide the tenant with the relevant invoices as proof of the damages, as per section 5(3)(h) of the RHA.

Should a dispute arise, regarding the landlord’s assessment of the damages or the tenant’s liability in terms thereof, either party may refer the dispute to the Rental Housing Tribunal for determination. The Rental Housing Tribunal will decide the matter, and its decision has the same force and effect as a Magistrate’s Court.  Such a dispute is however much less likely to arise with a proper incoming and outgoing inspection.

SA Branch Phone: +27 (0)21 914 0513
Namibia Branch Phone: +264 (0)81 143 6980
SA Branch: Ben Groot Attorneys Inc (2012/051739/21)
Namibia Branch: Michelle Saaiman Inc (2017/1088)