 Welcome to Your Property Rights Podcast, proudly brought to you by Private Property. If you're looking for expert legal answers to all your property-related questions, then stay tuned. Hello, hello, and a very warm welcome. It is Your Property Rights Podcast. And again, proudly brought to you by Private Property, I'm Paul Rotherham. Joining me in studio, as always, is the lovely Silna Stain. How's it, Silna? Hey, Paul. Nice to be with you. Ready to rock and roll for today's question? Of course I am. I eat a good one. Lovely. And Silna is always on the ball. She is an expert on property law, specifically focusing on rentals and evictions. And a quick credit to Silna. She's the MD of SSLR Incorporated Attorneys. So if you do need to connect with an attorney, you know who to choose. They do have a national footprint. So across South Africa, you will find SSLR Incorporated Attorneys. Right. On today's episode, we are talking about rental deposits. Another interesting topic, but then I think most of them are. That's the word that I'm using because I do. I find them all so enlightening and quite meaty. This one is pretty meaty. So today, we've received the following message from a listener. And thanks so much for connecting with us here at Private Property. We've been staying in our current rental for approximately two years and eight months. Every January, we've signed a new lease agreement. In our lease agreement for 2021, we requested that the lease period only be for six months. The agency agreed to this, the reason that we may like to move out. However, when we received the lease agreement via email, the names on the agreement were incorrect. We were asked to please print, sign and scan the lease addendum back to the agency and pay the admin fee of 500 rand. We responded to this and requested that the correct names be added to the lease agreement. However, this wasn't done. We requested a second time a few months later and guess what, still not done. The initial lease agreement stated that as tenants, we had to provide two months notice before vacating the apartment. However, this lease was never edited. And so as such, we've never signed the incorrect one. In August 2021, we provided 30 days notice. However, we were informed that the rental amount for September would be deducted from our deposit because we only gave one month's notice. Sure. So a bit of a picture here. Have you got all of that? You've put the pieces together. You've understood it. The question that follows that now that you've got the background cylinder is this, I would like to know if we are liable for the rental amount or should we have received our deposit on the basis that there was no lease? Were we not on a month to month agreement? And as such, would 30 days notice not be legal and or appropriate? And I'm going to read on to the next question as well so you can keep this in mind because what they're saying here is this has affected their TPN rating. As we've paid on time for the last two years and eight months, but because of the negligence and incompetence here on the part of the agency, we've now been negatively affected. How do we clear this up? And the sad part is I hear these kind of questions so often and this is why I'm so grateful for this podcast. So I really hope we educate people to avoid questions like this. I'm grateful to Private Property for bringing this initiative to do this podcast. Because if we can save people these kind of problems and pains, it would be fantastic. So thanks for that. First off, I would just like to mention it seems like a lot of the confusion comes from the agency in this particular situation. Now for our listeners, I think it's important to keep in mind your agent is mandated, your rental agent is mandated by the landlord. So he acts on behalf of the landlord. So whichever actions your rental agent takes is as if it is the landlord. Now in this particular context, what concerns me is that there was an issue with the names on the lease agreement. And why this is an issue is if we do not record the correct contracting parties, we're not recording the contract. Because consensus, so agreement between the parties is the first step of consensus is who are the parties. And if we record the parties incorrectly, that contract is 100% void. You can rectify a contract and I think that is what the agency tried to do here. Well, at least the tenant I do not even know who tried to correct it, but clearly that didn't happen. So the incorrect parties are still recorded in terms of this lease agreement. And I'm very impressed with this listener. It sounds like you really understand the law when it comes to these things because you are 100% correct. The fact that this lease agreement between the parties are void just because of the incorrect parties to the contract and because there were amendments made, which means there wasn't consensus reached, means this contract can't exist. So it's void. It's like it never happened. Then 100% sort of based on the terms of that agreement, but only in as far as it relates to the property that rent those kind of things. We would look at that lease agreement to sort of see the picture how much rent you must pay for which property and for how long. That would then be seen as a tacit or a verbal agreement, but in this context I would call it more tacit lease agreement than a verbal agreement because the intention of the parties wasn't actually to conclude a verbal agreement, but a tacit agreement actually came into being here. So by action of the parties, the tenant paid rent and he received occupation from the landlord. That complies with the essential law of the lease agreement and that means there was a lease agreement that came into being. And in that context we have the Rental Housing Act that says should we have an agreement like that, it will be deemed to appear periodically, so a month-to-month agreement. So the listener is very close to correct on the 30 days. Unfortunately it's not 30 days, but it is in fact a calendar month's notice. So you can give a calendar month's notice so if you were lucky and your 30 days fell from the last day of the previous month to the end of the next month, then you're 100% correct and you would not have to pay your September rent. If however your counting on the days were a little out and you gave notice after the commencement of the date, unfortunately it's not 30 days, it's a calendar month. So in that context you might be liable for payment of September rent, but if it was a calendar month successful cancellation you do not have to give the two months notice because of the provisions of the Rental Housing Act and a calendar month would suffice. Going back to the TPN rating, I'd like to understand that if I can because I think we've mentioned that in a couple of episodes. I'm still a little bit in the dark here. What exactly is TPN and the TPN rating? I'm so glad you asked this question because this is so important and when it comes to tenant vetting, so for the benefit of our listeners, tenant vetting is that process where you take your applications, your lease applications, you do the credit checks, you do the employment checks, you do the previous landlord checks. What I mean by that is you pick up the phone and you call the previous landlord in brackets. Yeah, I'd like to give a tip to the listeners, always do a deed search on the previous owner that the tenant listed to ensure that the property he says was his previous rental property. Does in fact belong to the person that you are now going to contact to check if he was a good tenant because in fairness, if you were a bad tenant, you're not going to give the right details. You're going to give the right address, but you're going to give the number of your best buddy who's going to say you've been the best tenant they've ever had. So that's just a little tip on tip. I'm closing my bracket. So TPN collects tenant payment data. So TPN stands for Tenant Profile Network. So it's a credit bureau, but with very specialized data, they collect specifically tenant profile data. Now, what's important here is when you do a credit check on a tenant, you're getting data from various credit bureaus from Experian from TransUnion and then also from the TPN's own data set. What's important here is this data that's been collected by TPN, which is called tenant payment profile data. And this is being submitted by the agent or the landlord on a monthly basis. Some systems integrate seamlessly with TPN on this and it will be automatically updated. But if the agent is using Excel as his property management system, then it's questionable. Yeah, then it's an interesting question to ask before you mandate an agent. But it's critical that the agent then logs onto TPN monthly and submit the payment profile data because what happens then is the tenant receives an SMS that says, thank you very much. You've paid on time and in full, your credit record has been positively updated. Or by the 7th of the month, we haven't seen a payment from you. Your credit profile has been negatively affected and that works like a charm. Yes, that's a huge incentive. And even better, Paul, and this is something a lot of people might not be aware of. Most of the time, every now and again, we do have what we call credit amnesties. And this is where the National Credit Regulator says, thanks guys. All the credit bureaus, all the judgments, all the defaults we delete from the systems. Your judgments are still enforceable in law. But when you do a credit check, it will look like somebody doesn't have a judgment. We, in fact, they do. And these credit amnesties typically happen around every five years. I do predict another one probably in 2023. Potentially 2022 on the back of COVID. And like I'm saying, it does seem to have a five year cycle. And every time we do a credit amnesty, that means when you do tenant vetting on your tenant, you're not going to know if you're placing a tenant who has a list of judgments as long as my arm. And I have a pretty long arm. Exactly. But your payment profile data collected by TPN remains unaffected by a credit amnesty. Meaning the proper paying tenant, like we have in this listener, with the agent that didn't collect your data properly. You are simply going to call TPN's help desk. They have specific people that will intervene in a situation like this. Make contact with the agency. And even if they don't, you can submit your proof of payments for this rent, your bank statements to TPN directly, and they will fix it for you. But for the bad tenant that didn't pay his rent. And that had a few judgments, a few defaults because this listener did ask about blacklisting. That's a default. So that's going to disappear the credit amnesty. Unfortunately, for those people, we are going to lose that data. But the payment profile data is not credit data. So that's unaffected by a credit amnesty. And this is why it's so crucial that agents and landlords record this data, so we know and we can keep track of our good paying tenants, awful that matter, the bad tenants. Just to wrap up very briefly, today's topic has been rental deposits. And in this instance, it's specifically related to an agency. And I think it's clear to see from what we've been told that this was an agency that may have dropped the ball. Just as a quick wrap up for today's episode, brought to you by, of course, private property. Is there a body where if I am dealing with an agency in the rental process, is there a body or an organization I can phone to say, hey, the wheels have come off. This is what's happened with a particular agency. Is there somebody who can kind of bail me out or help or an ombudsman as such? Yes. So we have the estate agency of Facebook and the estate agency of Facebook is mandated to do exactly that, take complaints from the public and then potentially have disciplinary hearings for estate agents. That body is going to change under the Property Practitioners Act, which has not been promulgated yet. We're still waiting for regulations to be promulgated before the Act comes into effect in full. And then we will have a different body. We've recently voted for potential members already and these other people that have to do these regulations, which we are waiting for. So there will be a replacement body of the EAAB. But as it stands at the moment, you can still lodge your complaints with the EAAB. I must say I know everybody that's in the property industry know that it's sometimes a little tricky to get the EAAB to act quickly and effectively. But if you keep on it, you might have some luck in that context. But if it is a reputable agency, I would probably go to the head office if it's a branch sort of agency and discuss it with the principal agent of that particular branch because usually the agent on the ground might just not know exactly what is happening or in this particular context, it sounds more like the admin person rather than the agent who might be dropping the ball. So I would start the process not with the EAAB. I'll start it with the principal agent of the particular branch to see if we can resolve the problem and just fix it. Always a pleasure. This past is proudly brought to you by Private Property. Leave a comment or ask a question to join the conversation. Sation. Sation.