An in-depth look at the Rental Housing Act.
This article is written by Michelle Orsmond, attorney, notary and conveyancer at Hammond Pole Attorneys.
The Rental Housing Act 50 of 1999 essentially regulates the relationship between landlords and tenants and it provides for dispute resolution by the Rental Housing Tribunal. It is important for landlords and tenants to familiarise themselves with the contents of the Act together with the Amendment bill to see how changes affect the parties involved.
The main objective is to facilitate a better relationship between the Landlord and the tenant by providing a guideline as to the rights of the parties, when it comes to entering into a lease agreement and to ensure that the parties understand the legal implications with regard to these agreements.
It is very important to note that all lease agreements must be in writing as this ensures that unnecessary disputes don’t arise between the parties, for example, occupation of the property, rental amounts and the terms agreed upon.
The Tenant and the Landlord have certain rights and obligations under the Act as well as the Amendment Bill, these are;
The Tenant’s Rights
- The tenant has the right to receive a written receipt from the Landlord for all payment received by the Landlord from the tenant (these must be dated, the address of the property occupied, indicate the type of payment and the period for which payment is made);
- The tenant may not be unfairly discriminated against based on gender, race, marital status, social origin, etc.;
- The tenant has the right, during the lease period, to privacy and the landlord may only exercise his right of inspection in a reasonable manner after reasonable notice has been given to the tenant; and
- The tenant has the right not to have his person or dwelling searched, possessions searched and seized without an order of court or a ruling by a Tribunal and the tenant has the right to privacy of his communications.
The Landlords Rights
- The landlord has the right to regular and prompt payment of the rental or any changes that is payable in terms of the lease agreement;
- The landlord has the right to recover unpaid and arrear rental which is due and payable after obtaining a ruling by the Tribunal or an order of a court of law;
- The Landlord can terminate the lease agreement on grounds that do not constitute an unfair practise;
- Repossess the property after first obtaining a Court Order
- Claim compensation for damage to the property or improvements on the property, if caused by the tenant or his/her visitor.
- The Landlord may request the tenant before moving into the property to pay a deposit not exceeding an amount equivalent to an amount specified in the lease agreement or agreed to between the parties.
Inspection the Property
There is a duty on the landlord, together with the tenant, to jointly inspect the property before the tenant takes occupation of the property. This duty is to ascertain whether there are any existing defects or damage to the property.
This also ensures what responsibility the Landlord has, with regards to rectifying the defects or damage, before occupation.
A landlord may inspect the property during the course of the lease, but in doing so he must respect the tenant’s right to privacy during the lease period and may only exercise his right of inspection in a reasonable manner after giving reasonable notice to the tenant.
At the end of the lease period the Landlord, together with the tenant, must jointly inspect the property, at a convenient time agreed to by the parties, to ascertain whether any damage was caused to the property during the tenant’s occupation.
Failure by the Landlord to inspect the property in the presence of the tenant, is deemed to be an acknowledgement by the Landlord that the property is in a good and proper state of repair and the Landlord will have no further claim against the tenant.
Breach and or termination of the Lease agreement
Should the tenant vacate the property before expiration of the lease, without notice to the landlord, the lease is deemed to have expired on the date that the landlord established that the tenant had vacated the property, in such event the landlord retains all his rights arising from the tenant’s breach of the lease.
Further, should the lease be terminated and the tenant is still in occupation and the tenant refuses to vacate the property, the Landlord may proceed to evict the tenant from the property, after having obtained an order of court in accordance with the Prevention of illegal Eviction from Unlawful Occupation of Land Act,1998.
Rental Housing Amendment Bill, how the changes affect the parties to a lease agreement
The bill has placed a major responsibility on the relationship between the Landlord and the Tenant as well as the terms under the lease agreement.
The amendments are aimed at protecting the landlord and the tenant from unfair and illegal practices.
What is deemed unfair practises?
The bill has imposed protection measures against Landlords with regard to:
- the disconnection of water and lights;
- the unlawful removal of tenants and
- changing of locks to keep a tenant out of the property.
The bill and the Act require an order from the court or an order from the Tribunal, where all relevant reasons for eviction are considered and legally acted upon.
The Act imposes fines and imprisonment on Landlords who contravene the provisions of the Act.
The Lease agreement
The bill sets out the amended guidelines that all lease agreements need to entail:
- must be reduced into writing, and signed by the parties thereto;
- it must contain the correct description of the property being leased (street address will be sufficient);
- it must set out the rights and obligations of the landlord and the tenant;
- the amount of rental and other charges must be identified in the lease agreement; and
- a lease will be enforceable in a tribunal or competent court.
The Rental Housing Tribunal was also instated by MEC’s to attend to complaints brought by either the tenant or landlord. The Tribunal further assists courts with implementing the correct and appreciative discipline procedures when it comes to and contraventions in terms of the Act.
Every municipality will have a rental housing information office, to assist and advise tenants and landlords on their rights, obligations and ensure that the same is done in accordance with the Rental Housing Act.
Ministers have also introduced a template lease agreement to be used as an example to landlords and tenants which set out the requirements broadly, to aid with ensuring compliance with the Rental Housing Act.