What a written residential lease must contain
What the Rental Housing Act requires in a South African residential lease, its annexures, and how a letting agent sends it for e-signature.
By Achekam · · 5 min read · For Real estate businesses in South Africa
A letting agent with a new tenant waiting usually reaches for the lease template in the shared drive, changes the names and the rent, and sends it off. The template may be years old. It may have been written for a different kind of property. And it may be missing something the law requires every residential lease to contain.
For South African letting agents and landlords, the content of a residential lease is not left to the market. The Rental Housing Act sets out what must be in it and what must be attached to it. This article goes through those requirements as a checklist, and then looks at how to get the lease signed and filed without printing a page.
The landlord must put it in writing
Section 5(1) of the Rental Housing Act, 1999 requires the landowner to reduce the lease with the tenant to writing. The same section says the lease is not subject to the Formalities in Respect of Leases of Land Act, 1969, and section 5(3) makes the lease enforceable in a Tribunal or a competent court.
The duty sits with the landowner, so a letting agent acting for a landlord should treat a written lease as non-negotiable. An oral arrangement with a tenant "until the paperwork is done" leaves both the landlord and the agent exposed if anything goes wrong in the first month.
The details every lease must state
Section 5(6) of the Act lists what a written residential lease must contain. As a working checklist:
- The names of the tenant and the landowner.
- The address of each, for notices.
- A description of the dwelling; a street address is sufficient.
- The rent.
- Any reasonable escalation of the rent.
- The payment frequency, if rent is not payable monthly.
- The amount of any deposit.
- The lease period, or the notice period for termination.
Each item is simple. The common failures are omissions, such as a lease that says an escalation will apply but never says how much, or one with a deposit clause and a blank where the amount should be. Read the finished lease against this list before it goes to anyone for signature.
Other charges must be named
Section 5(6)(h) of the Act requires the lease to state the amount of any other charges payable in addition to the rent, and those charges must be identified in the lease.
In practice, this is where disputes start. Tenants are billed for water, electricity through a prepaid or sub-meter, refuse removal, parking bays, garden services or levies, and the lease mentions some of them only in passing. Name every charge the tenant will pay and state the amount, or how it is worked out. A charge the lease does not identify is a charge the tenant can reasonably question.
A worked example in words: a townhouse in a complex has the rent, a monthly parking bay fee and a share of the water bill. All three belong in the lease, the first two with amounts and the third with the basis on which it is calculated.
The annexures that go with it
Sections 5(7) and 5(8) of the Act require two documents to be attached to the lease as annexures:
- The list of defects registered under sections 4A(4) and 4B(4), which records the condition of the dwelling.
- A copy of any House Rules that apply to the dwelling, such as a complex's conduct rules.
Agents often handle the defects list as a separate inspection report done on move-in day. That is fine, provided it ends up attached to the lease, not filed in a different folder. When sending the lease for signature, include both annexures in the same document so the tenant signs the complete set.
The pro-forma lease
Section 5(6A) of the Act, as published on Acts Online, requires the Minister to develop a pro-forma lease agreement in all 11 official languages, containing the Act's minimum requirements, which tenants and landowners may use as a guideline. An agent's own lease can, and usually does, go further than the pro-forma, but it should never contain less than the minimum.
Section 5 sets all of this out in one place; Acts Online's text of section 5 of the Rental Housing Act shows the written-lease rule, the required contents, including rent, escalation, deposit and lease period, and what happens when a lease expires. Expiry has its own problems, covered in when a tenant stays on after the lease ends.
Signing it electronically and keeping the signed copy
Once the lease and its annexures are ready, Achekam can send it for signature.
Building the envelope. Any document can be sent for electronic signature with signature and initials fields placed on it. A lease usually needs initials on each page and a full signature at the end. Signers can sign in order, for instance the tenant first and then the landlord, or all at once, and the envelope can carry an expiry date and reminders. An uploaded PDF, a document composed from text blocks with merge fields, or a saved template can all be sent.
Linking it to a known person. An envelope with a signer from outside the business must be linked to a client or a CRM lead before it is sent. For a letting agent, that means the tenant and the landlord are on record before the lease goes out, which also helps when two co-owners must both sign; see co-owners signing a mandate.
The signed result. When everyone has signed, Achekam produces the signed PDF with a completion certificate listing each signer's e-mail, the times they signed, their IP address and browser, and the document's fingerprint. The signed PDF and certificate are filed back into Documents.
Knowing what kind of signature it is. Achekam's e-signatures are simple electronic signatures: the certificate cites section 13 of South Africa's Electronic Communications and Transactions Act and says they are not advanced electronic signatures. If a particular document needs more than that, take advice before relying on it. How the certificate reads in each country is covered in e-signature certificates by country.
Open the lease template your office used most recently, tick it against the section 5(6) checklist above, and fix any line that is missing before the next tenant signs.
General guidance only, not advice on your own circumstances. Tax and payroll rules change: check the current position with the authority or your adviser.
