Why Incoming Inspections Matter: Compliance, Risk and Consequences

Why Incoming Inspections Matter: Compliance, Risk and Consequences

by | Mar 21, 2026 | Landlord Tips, Tenant Tips

The Rental Housing Act[1] (RHA) is the prevailing legislation in respect of residential leases in South Africa.

Section 5(3)(e) of the RHA requires the Landlord and the Tenant, prior to taking occupation of the premises, to jointly inspect the premises for the purpose of ascertaining and recording the condition thereof.

The inspection serves as confirmation of the condition of the premises at the time that the Tenant is to take occupation of the premises. Any defects or damages to the premises should be identified, either for the Landlord to rectify prior to the Tenant taking occupation, or depending on the nature thereof, simply for the purposes of noting that the defects and damages were present prior to the commencement of the lease and that the Tenant will not be liable to cover the costs of reparations thereof at the expiration of the lease.

The inspection protects the Landlord and the Tenant from potential disputes later on. Importantly, the condition report will set a standard upon which to assess the premises at the expiration of the lease to ascertain whether there are justifiable deductions to be taken from the Tenant’s deposit.

Crucially, the inspection is to be done jointly. This means that both the Landlord and the Tenant, or their agents, are to be present during the inspection.

There are severe consequences should the incoming inspection not be done in the manner as required by the RHA.

In the event of the Landlord failing to conduct the incoming inspection, the premises shall be deemed to have been received in good and proper condition. In this case, the Tenant will be entitled to receive their full deposit irrespective of whether they have caused damages to the property, as the Landlord will be precluded from deducting any amounts from the deposit at the expiration of the lease for the costs of repairing any damages to the premises. The Landlord would only then be entitled to recover amounts from the deposit for which the Tenant is in arrears – in the instance where the Tenant is behind on payments for rental or utilities, for example.

The Landlord and the Tenant can negotiate whether the Landlord is to effect certain repairs before the Tenant takes occupation, but the incoming inspection does not create the duty to do so. The incoming inspection serves the purpose of recording the condition of the premises at the commencement of the lease. There is an obligation, however, that the Landlord ensures that the premises is safe and habitable. In the event that repairs are necessary in order to make the premises is safe and habitable, effecting those repairs will be obligatory on the Landlord.

In an attempt to avoid disputes later on, we recommend to Landlord’s and managing agents to consider the following when holding the incoming inspection:

  • Create an inspection checklist of all the fixtures, features and appurtenances to the property, listing each of the rooms in the property individually, and including the condition of features such as swimming pools, driveways and intercom systems. (Photographs with notes attached are always helpful to avoid uncertainty as to what the factual position is.)
  • It goes without saying that the condition report should be in writing, however confirmation of the parties’ agreement thereto is imperative – parties should sign the inspection report and have same witnessed, with a recording of all parties present at inspection being confirmed.
  • The incoming inspection should be held as far in advance of the commencement date of the lease agreement as possible, allowing the Landlord ample opportunity to rectify any damages to the premises which may be present prior to the Tenant taking occupation. Try avoid a circumstance whereby the Tenant’s occupation is delayed due to any required renovations.

 

COMMON QUESTIONS

Can the Landlord utilise the Tenant’s deposit to cover the cost of reparations prior to the Tenant taking occupation of the premises?

No, the Tenant’s deposit is held by the Landlord for damages incurred by the Tenant during the subsistence of the lease, and not any damages present prior to their occupation. Any reparations required prior to the Tenant’s occupation is for the Landlord’s account.

Does the Landlord and Tenant need to be personally present at the incoming inspection?

It is always advisable that the two parties are present personally, however general practice allows for either or both parties to be represented by third-parties. A managing agent, therefore, can represent a Landlord should they be unable to attend personally.

What happens if the Tenant refuses to attend the incoming inspection?

The RHA stipulates that the incoming inspection is to be done jointly, however does not specify the repercussions on the Tenant in the event that they refuse to attend. In this instance, the Landlord is advised to take photographic and video evidence of the premises prior to the Tenant’s occupation for documentary proof. The risk will be on the Tenant as to whether the evidence will be a true reflection of the premises’ condition. Most lease agreements afford the Tenant an opportunity to note any defects which they become aware of within the first seven days of their occupation however.

Does a premises need to be handed-over defect-free?

It is always advisable that the Landlord rectifies as many defects as possible prior to the Tenant’s occupation of the premises. However, provided that the defects are not material to the Tenant’s use, enjoyment and occupation of the property, there will usually be discretion applied to the defects and the required reparations thereof.

In summary, the incoming inspection is vital to the protection of the interests of both the Landlord and the Tenant. Active participation by both parties may lead to the avoidance of expensive disputes which will inevitably arise at the expiration of the lease.

[1] ACT 50 of 1999.

 

De Rebus: Supplier’s 20-Day Notice Before Cancellation

De Rebus: Supplier’s 20-Day Notice Before Cancellation

by | Dec 15, 2024 | Leases

Having a non-paying tenant vacate the leased premises sooner rather than later is the hope of every landlord. While the landlord might be impatient and not want to afford the tenant 20 business days to remedy its breach; a 20-business day delay is nothing in comparison to the delay that may be caused should one fail to follow the legislative timelines and must restart legal proceedings from scratch. Below we explore the timelines envisaged in s 14(2)(b)(ii) of the Consumer Protection Act 68 of 2008 (CPA) and how the courts have applied this notice period.

Legislation: Consumer Protection Act

The supplier (landlord) may cancel the agreement 20 business days after giving written notice to the consumer (tenant) of a material failure (s 14(2)(b)(ii) of the CPA) where the consumer fails or refuses to remedy the breach within the given period. The landlord’s point of departure is to issue a notice of breach and letter of demand, affording the tenant 20 business days to cure their breach, failing which the landlord may issue a notice of cancellation or demand specific performance thereafter.

Judicial interpretation
  • The Centpret Properties case

To summarise the facts of Centpret Properties (Pty) Ltd v Shandukane [2023] JOL 61090 (GJ); the lease agreement stipulated that the landlord may issue a notice of breach and letter of demand (notice), stating that the material breach must be cured in seven days. Failing which, the landlord may issue a letter of cancellation, terminating the lease agreement.

In para 11, the judge describes the right afforded to the tenant, whereby the tenant may reject the seven days stipulated in the lease agreement to cure the breach and is entitled to request the 20 business days as prescribed in the CPA. The tenant may then make use of the full 20 days to cure the breach.

However, the tenant may not treat the notice as defective and refuse to comply with the landlord’s instruction to remedy the material breach. When the notice is received by the tenant, despite the specified time frame of seven days, the legislative notice period starts running. If the material breach is not cured within 20 days, the landlord may exercise their right to cancel the lease after the expiry of the 20-business day period.

If the landlord cancels after seven days his actions may constitute a repudiation.

  • The Balwin Rental case

In Balwin Rental (Pty) Limited v Mathaba and Another [2021] JOL 53718 (GJ), the landlord gave the tenants seven business days to remedy their breach of non-payment. The tenant argued that the notice did not satisfy s 14(2)(b)(ii) of the CPA which affords 20 business days for the defaulting party to remedy its breach.

The judge found that a notice allowing the tenant seven days to remedy their breach is sufficient under the CPA, provided that the landlord waits at least 20 business days before cancelling the lease (para 22).

The notice was delivered in December 2019; however, the lease was subsequently cancelled in August 2020. The defaulting party had made three payments in January 2020, April 2020, and May 2020, but did not satisfy the outstanding amounts owed to the landlord and failed to satisfy the demand timeously.

The court found that the landlord’s delay in cancelling did not constitute a waiver of his right to cancel the lease agreement. The landlord’s cancellation notice delivered in August 2020, after the 20 business days to remedy the breach in December 2019 had expired, despite an eight-month delay, is sufficient and valid.

  • The Transcend Residential Property Fund case

The tenants in Transcend Residential Property Fund Ltd v Mati and Others 2018 (4) SA 515 (WCC) made partial payment towards the outstanding debt after the seven days stipulated within the notice – but within the legislated 20 business days. However, the tenants failed to satisfy the debt in full within the 20 business days. The landlord was within its right to issue a letter of cancellation and accordingly terminate the contract.

The judge explained that the landlord is not obliged to inform the tenant of the legislative 20 business days to cure their default. If the notice of cancellation was delivered after the expiry of the 20 business days as per s 14 of the CPA, the supplier (landlord) has complied with s 14 of the CPA (para 56).

Conclusion

The Gauteng Local Division High Court in Johannesburg (Centpret Properties and Balwin Rental) and the Western Cape Division High Court in Cape Town (Transcend Residential Property Fund) agree that the seven days allotted to cure a material breach is not unlawful. The landlord is not saddled with the responsibility of advising their tenants as to the legislative timeline to cure their breach. In contrast, should the tenant receive a notice indicating seven days to remedy their breach; the tenant may invoke their right under s 14(2)(b)(ii) of the CPA to remedy their default within 20 days. Balwin Rental makes it clear that the landlord’s right to cancellation arises after the 20 business days has expired and the landlord may exercise that right any reasonable time thereafter.

To conclude, if you intend to institute proceedings against your defaulting tenant, you must afford the tenant 20 business days before issuing a notice of cancellation.

Karlynne Josephus LLB (UWC) is a candidate legal practitioner and Chelsea Lee Swanepoel LLB LLM (Stell) is a legal practitioner at Webb Attorneys Inc in Cape Town.

This article was first published in De Rebus in 2024 (December) DR 23.