By Andries Cornelissen B. Proc, Practical Legal Training, Accredited and Certified Mediator, International Accredited and Certified Mediator London School of Mediation, Certified and Accredited Conflict Coach, Practicing Associate: The Association of Arbitrators, Certified and Accredited AHI Representative

South Africa’s rental housing scene will see major changes once the Rental Housing Amendment Act 35 of 2014 is gazetted into law, notably with more obligations on landlords and more rights for tenants. 

INTRODUCTION

Balancing the rights between landlord and tenant goes back hundreds of years. 

One of the “old authorities” of the Roman Duch Law, Johannes Voet (in 1696 within the Commentarius ad Pandectas, Commentary on the Digesta), interpreted how the law would apply on a day-to-day basis. For millennia, the scale was tipped in favour of the landlord as master of the property. 

Since the dawn of our democracy in 1994, we have seen legislation being introduced to protect the tenant against unscrupulous landlords. The most significant entails the Rental Housing Act in 1999, which was followed by the Consumer Protection Act in 2008. Unfortunately, however, several grey areas continue to exist. Enforceability is difficult, and, in some instances, almost impossible for the estimated 13 million households that rent property in South Africa. 

Naturally one must add that not all landlords are bad and out to prejudice their tenants. Only in some instances the landlord-tenant relationship becomes unbalanced and this causes some to take the view that landlords make vast amounts of money out of the tenant’s vulnerability in not having a home of their own. 

There is a quote by John Stuard Mill that reads, “Landlords grow rich in their sleep”. Yet one must point out that the sleep of non-compliant South African landlords may become more restless as we edge closer to the passing of the new Amendment Act. 

NON-COMPLIANCE BY THE LANDLORD WILL CONSTITUTE A CRIMINAL OFFENCE SECTION 16 (AB)

The Amendment Act increases the rights of tenants, the obligations of landlords, and firms up the rules concerning inspections, deposits, the condition of a property and what should be included in the lease agreement. 

Landlords shoud take note that non-compliance with the Amendment Act could result in a fine or the possibility of spending up to two years in prison!

THE UNDERMENTIONED COULD LEAD TO CRIMINAL PROSECUTION OF A NON-COMPLIANT LANDLORD, INCLUDING BUT NOT LIMITED TO A FINE OR JAIL TIME OF UP TO 2 YEARS

  • The new legislation requires landlords to provide tenants with a written lease agreement. Verbal agreements will no longer be valid under any circumstances. Should there currently be no written lease agreement in place, the landlord has a period of 6 months after the enactment of the Amendment Act to introduce a written lease agreement. 
  • Properties must be ‘habitable.’ This is defined as a dwelling that is structurally sound, is suitable for living in, has adequate space, provides protection from the elements and has access to basic services such as water and electricity.
  • The landlord must place the tenant’s deposit in an interest-bearing account and repay the deposit plus interest within seven days of the lease expiring.
  • The onus is on the landlord to inspect the property with the tenant at the start of the lease. Any defects or damage not rectified by the landlord must be listed and attached to the lease agreement. If a joint inspection does not take place, the landlord may not later withhold the deposit for repairs or damages. 
  • The landlord cannot cut off utilities and services due to non-payment. Only the municipality has the right to do so.
  • A landlord may under no circumstances lock a tenant out of the property without a court order. This rule gives the tenant security of tenure.
  • Tenants are entitled to privacy and, while landlords can inspect the property from time to time, unannounced ‘spot’ inspections are not permissible. You will therefore be fully within your rights to refuse the landlord entry should he/ she arrive unannounced. 

DOES THE NEW LAW AFFECT MY CURRENT LEASE AGREEMENT?

Yes, it does. Once the Amendment Act is gazetted, the Rental Housing Amendment Act will apply and landlords will have six months to bring existing agreements in line with the new legislation. 

The landlord may not, however, change the original terms when providing a tenant with a lease agreement. For example, rent cannot be increased where the verbal agreement provides that an increase is not due for another few months. 

Landlords and tenants are encouraged to ask Legal Hero to peruse such agreements to ensure compliance. Please remember to include your membership number and/ or your ID number. 

Andries Cornelissen from Legal Hero

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