Can my landlord keep my deposit for fair wear and tear?

No. A landlord may not keep any part of your deposit for fair wear and tear. Under the Rental Housing Act 50 of 1999 the deposit is security for damage, unpaid rent and unpaid charges. It is not a fund for refreshing a property that has simply aged while you lived in it. Faded paint, worn carpet and a scuffed skirting board are the landlord's cost of owning a rental. Only damage beyond ordinary use can be deducted, and even then the landlord must show that it was not there when you moved in, that it was recorded when you moved out, and what the repair actually cost.

What fair wear and tear actually means

Fair wear and tear means the deterioration that any home suffers when a reasonable person lives in it carefully. The longer you stayed, the more wear and tear is fair. A flat repainted a month before you arrived should look almost new after a six-month lease. The same flat after five years will need paint, and that is not your fault.

Damage is different. Damage is the result of an accident, neglect or misuse. A burn mark on a counter, a hole punched in a door, a cracked basin, a cupboard door ripped off its hinges, a carpet ruined by a pet, and a garden left to die are damage. So are missing keys, remotes and fittings that were there on day one.

There is a grey area in between, and this is where most disputes sit. Small nail holes from picture hooks are usually wear and tear. Twenty large holes from shelving are usually damage. Light marks where a couch stood are wear and tear. Crayon on the wall is damage. The test is always the same question: is this what a careful tenant would have left behind after this length of time?

How deductions are supposed to work, step by step

The Act builds the deposit rules around two inspections, and the landlord's right to deduct depends on both.

1. The incoming inspection. Before you move in, you and the landlord walk through the property together and list every defect in writing. That list is the baseline. Anything on it cannot later be charged to you.
2. The deposit is invested. The landlord must hold your deposit in an interest-bearing account, and the interest belongs to you.
3. The outgoing inspection. In the last days of the lease, the two of you walk through again and record any damage that is not on the incoming list. The landlord must arrange this, and you must make yourself available.
4. The comparison. Whatever appears on the outgoing list but not on the incoming list, and is more than fair wear and tear, is what the landlord may repair at your cost.
5. The repair and the receipts. The landlord fixes the damage within a reasonable time and keeps the invoices.
6. The refund. The landlord pays you the deposit, less the cost of those receipted repairs, plus interest, within the timelines described in How long does a landlord have to return my deposit?. Broadly, that is about seven days where there is nothing to deduct, about 14 days after the repairs where there is damage, and about 21 days where no outgoing inspection took place.

If the landlord skips the outgoing inspection after you made yourself available, the Act treats the landlord as accepting that the property is in good order. In that case there is nothing to deduct at all.

A worked example

The names and figures are illustrative.

Naledi rented a two-bedroom flat in Cape Town for four years at R11 000 a month and paid a deposit of R22 000. At the incoming inspection the agent noted a chipped bath and a stained lounge carpet. Naledi photographed everything and emailed the photos to the agent the same day.

At the outgoing inspection, the agent notes the following: paint faded throughout, the lounge carpet worn and stained, a cracked kitchen tile, a missing bedroom key, and the oven door glass shattered. The agent proposes to deduct R14 500: R9 000 to repaint, R3 000 for carpet cleaning, R1 200 for the tile, R300 for the key and R1 000 for the oven glass.

Naledi accepts the tile, the key and the oven glass, provided she sees the invoices. She disputes the rest. Paint that faded over four years is wear and tear. The carpet stain was on the incoming report. When the agent produces invoices of R950 for the tile, R280 for the key and R1 100 for the oven glass, the lawful deduction is R2 330, not R14 500. Naledi is owed R19 670 plus four years of interest. Had the agent refused to back down, her incoming photographs and the signed incoming report would have decided the matter at the Rental Housing Tribunal.

What to do this week

1. Reread the incoming inspection report and find your move-in photographs. Anything already on that list is off the table.
2. Go through the landlord's proposed deductions line by line and sort them into three groups: fair wear and tear, damage you accept, and damage you dispute.
3. Write to the landlord. Say which items you accept, ask for the invoice for each, state that the rest is fair wear and tear under the Rental Housing Act, and ask for the balance plus interest by the date the Act requires.
4. Ask for the interest statement in the same letter. The deposit must have been invested, and the landlord must account for the interest.
5. Keep proof of delivery. A read receipt, a WhatsApp tick or a courier slip is enough.
6. If the deadline passes, download the Rental Housing Tribunal complaint form for your province and file it. It is free.

Documents to gather

• the signed lease and any renewal, showing the deposit amount and how long you stayed
• proof of the deposit payment
• the incoming inspection report, signed by both sides if possible
• your dated move-in photographs and the message that sent them to the landlord
• the outgoing inspection report, or your written offer to attend one if the landlord did not arrange it
• your dated move-out photographs of every room
• the landlord's list of deductions and any invoices supplied
• every message about the inspections, the deposit and the deductions

If you have no incoming report and no photographs, do not give up. The landlord still has to show the damage happened during your tenancy, and a landlord with no record of the incoming condition is in a weak position too.

Realistic timeline

Deposit disputes move faster than most legal problems because the paperwork is simple.

• Week one. Your letter goes out. Many agents settle at this point, knowing a Tribunal will disallow anything without an invoice.
• Weeks two to four. If the landlord does not pay, you file at the Rental Housing Tribunal. The Tribunal usually tries mediation first.
• The following weeks or months. If mediation fails, the Tribunal holds a hearing and makes a ruling. How long that takes depends on the province and how busy the Tribunal is. A Tribunal ruling can be enforced like a magistrate court order.

The Small Claims Court runs on its own timetable. You cannot run both at the same time for the same money, so choose one.

Common mistakes and what they cost

Agreeing to a "standard" cleaning or repainting fee. A fee for genuine cleaning may be fair if the lease says so and the work is done. A blanket repainting charge regardless of the condition of the walls dresses wear and tear up as damage, and Tribunals routinely disallow it.

Not attending the outgoing inspection. If the landlord invited you in writing and you did not come, the landlord may inspect alone and you lose the argument that the property was accepted in good order.

Fixing damage yourself badly. A wall patched with the wrong colour paint can turn a small deduction into a full repaint. Repair properly or let the landlord deduct the real cost.

Withholding the last month's rent to "use up" the deposit. The landlord then has a clean deduction for arrear rent, and you have no deposit left to argue about.

Accepting a round number. "Repairs, R8 000" is not an accounting. Every deduction must be tied to a receipt.

Tenant's rights vs landlord's rights

The tenant may: insist on a joint incoming and outgoing inspection; refuse deductions for fair wear and tear; refuse deductions for anything already on the incoming list; demand invoices for every deduction; demand the interest earned on the deposit; and refer a dispute to the Rental Housing Tribunal at no cost.

The landlord may: ask for a deposit; deduct the receipted cost of repairing damage beyond fair wear and tear that was recorded at the outgoing inspection; deduct arrear rent and unpaid utilities that are the tenant's responsibility under the lease; charge for cleaning where the property was left genuinely dirty and the lease allows it; and claim against the tenant separately if the damage costs more than the deposit.

A lease clause that tries to make the tenant pay for ordinary ageing is likely to be treated as an unfair practice.

If you cannot afford an attorney

For almost every deposit dispute an attorney costs more than the amount at stake, and you do not need one.

• The Rental Housing Tribunal in each province hears deposit complaints for free. Fill in the complaint form, attach your documents and let the Tribunal call the landlord.
• The Small Claims Court hears claims up to its limit at no cost and without lawyers on either side. Use our small claims calculator to check whether your claim fits.
• If an estate agent has behaved badly, for example by refusing to account for a trust deposit, you can also complain to the property practitioner regulator that oversees estate agents.
• Legal Aid South Africa on 0800 110 110 can tell you which forum suits your case. See our Legal Aid page.

For a sense of what attorneys charge when a matter is large enough to justify one, see what property and tenancy matters cost.

Frequently asked questions

Tenants ask whether they should sign an outgoing inspection report they disagree with. Sign to confirm you attended, and write your objections next to each disputed item before you sign. They ask what happens when the landlord is a private individual with no agent. The same rules apply. The Act does not care whether the landlord is a company or a person.

Related reading: How long does a landlord have to return my deposit? and Who pays for repairs in a rental property?.

LawMatch is not a law firm and this page is general information, not legal advice about your situation.