Leases – Immovable Property 

Often simple agreements of lease are concluded by the parties themselves, without reducing the agreements to writing. It is advisable, however, for ease of proof for enforcement, always to reduce the terms of the lease to writing, rather than having to rely on oral representations. A lease is no longer simple when it has the effect of running for ten years or more – such leases are governed by the formalities relating to the Leases of Land Act 18 of 1969. If a lease of such a period is contemplated, one should consult one’s attorney to ensure that the formalities are complied with. Due to the drastic increase in stamp duties since 1 January 2005, long term leases are less attractive.

It should also be noted that leases relating to residential premises are subject to the Rental Housing Act 50 of 1999. The Rent Control Act 80 of 1976 was repealed by the Rental Housing Act 50 of 1999. The Rental Housing Act creates mechanisms to promote the provision of rental housing property. It provides for the establishment of rental housing tribunals and facilitates sound relations between tenants and landlords. It deals with complaints from tenants or landlords concerning unfair practices. For instance, it will determine matters of rentals payable by a tenant taking cognizance of economic conditions of supply and demand and the need for a realistic return on investment for investors. The Act covers only leases of dwellings for housing purposes. The Act makes it obligatory that, when advertising a dwelling for purposes of leasing, a landlord may not unfairly discriminate against prospective tenants on grounds such as race, gender, sex, pregnancy, sexual orientation or religion. If requested a landlord must reduce the lease to writing. A written lease must set out such information as the lease period, the rental, the deposit, the description of the dwelling and the names of the tenant and landlord. Furthermore, a list of defects must be attached as an annexure to the lease and a copy of any house rules applicable to the dwelling must also be attached as an annexure to the lease.  

Written communications between landlord and tenant should be delivered strictly in accordance with the lease. If the lease is silent thereon, it is suggested that the said communications be sent by registered post in order to facilitate proof of despatch. The Stamp Duties Act 77 of 1968 was repealed by the Revenue Laws Amendment Act 60 of 2008. However, Stamp Duty is still chargeable on leases longer than five years. Directions on the rate and manner of payment can be obtained from SARS. There are penalties for late payments.