‘I wasn’t allowed to keep pot plants’ – here’s what your landlord can and can’t do

Illustration. Photo by Getty Images
Illustration. Photo by Getty Images
  • Whether you're about to move into your first place, changing homes due to Covid-19 or have been on your own, there are things you should know about your rental agreement. 
  • Unless it's illegal or immoral, landlords can pretty much put anything in the contract.
  •  It's vital for you, as a tenant, to read and understand the lease agreement before signing it.

Melissa Phillips, 36, used to live in a flat where the landlord was fine with her having plants inside the house, but pot plants were not allowed on the ledge of her kitchen window where her neighbours could see them, nor on her balcony.

She discovered this after she got a phone call from her landlord who had come around to visit without notifying her, and she was upset about a succulent that could be seen in the kitchen window.

Melissa checked and it was actually in her rental agreement. 

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We spoke to Reva Watson, attorney, notary, conveyancer and director of Watson Attorneys, a Cape Town based property law firm.

Reva says she’s also heard of ridiculous additions to rental agreements, such as:

-       Excessive late fees that are more than 10% of the rent.

-       Landlord can drop by whenever, without notice.

-       Landlord can terminate a "fixed" lease at any time, for any reason.

-       Landlord forcing tenants to waive the right to seek legal help. 

-       The tenant must hire a professional cleaning company more than 1-2 times a month.

-       Forfeiture of the security deposit if the tenant violates any rules – even if the landlord doesn’t have any damages.

-       Ability for the landlord to change the locks and throw the tenant’s personal property to the curb if rent is not paid on time.

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The above is not okay, and if you think your landlord is in violation of any of those, review your contract again and possibly get a professional to give you some advice on how to handle the situation. 

But before you do that, let's backtrack and look at what a lease contract is and what its contents should be.

So what are the basics? 

Reva says the absolute basics your lease agreement should cover is what, who, when, and how much.

What is being leased? The lease must always cover exactly what is being leased:

-       Describe the Property that is involved. 

-       Describe any movables that the landlord will be providing (oven/washing machine etc).

What is the Landlord/Tenant responsible for? 

-       Maintenance

-       Defects

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Who the landlord and the tenant(s) are and they must be fully described so they know who they are contracting with. 

At a bare minimum you must have the following: 

-       Registered Company Name/ Full Name

-       Registration Number/ Identity Number

-       Physical Address

-       Email address

-       Telephone number

When the lease starts and ends so both parties know. Including: 

-       Start Date

-       End Date

-       Any option to renew

How much the total costs will come to and what the tenant pays to the landlord. This means: 

-       Basic rental

-       Utilities - Water, electricity

-       Deposit

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What can your landlord not include in the rental agreement? 

"The landlord is allowed to prohibit and forbid just about anything, so long as it is not illegal or immoral. This sounds extremely broad and disheartening for tenants," says Reva.

"But it doesn't have to be as terrible as it sounds. It essentially serves as a lesson to tenants to read and understand the contract before signing it."

You either have to negotiate fairer terms, or rather find a better place to rent. 

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What are these immoral or illegal clauses? 

-       A landlord should ethically and morally be able to stand behind every clause in the lease agreement. They might be forced to justify their lease in court (or tribunal) one day – and "I didn’t know" or "They agreed to it", won't hold up.

-       Every landlord has an obligation to ensure the lease is legally compliant with legislation and, remember a judge or tribunal could throw a contract if it's not "fair and reasonable".

-       The Rental Housing Act 50 of 1999 sets out the laws in relation to residential rental agreements. It is not a difficult Act to read especially Chapter 3 which relates to Relations Between Tenant and Landlords.

-       The landlord’s contract MUST meet these requirements. 

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"I cannot over-emphasise how important it is for the tenant to read and understand the lease before signing," says Reva.

Yes, there are laws to protect you, but more often than not landlords hold the power and the tenant is stuck in a situation where they cannot afford any other options or have no access to any other resources. 

Reva suggests reading through the contract completely and to get legal advice if necessary, because it will work out to be cheaper in the end. 

Also, make sure there are no clauses that stipulate your landlord may add clauses to the contract or give them unfair flexibility with regards to the contract.

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