We recently wrote about the Rental Housing Amendment Act 35 of 2014, still to be gazetted. It seems the article has focused the minds of our clients and we’ve had requests for more information on what the Amendment Act means for both landlords and tenants. So we will set out here what we see as the most important points.
Obligations of the landlord
Arguably the most significant change in legislation is the onus on the landlord to provide a written lease agreement, and the criminalisation of the failure to do so. This strikes us as a heavy-handed means to a reasonable end; and an alternative approach might be the provision of a default lease agreement enforceable in law in the absence of a written lease. This would encourage landlords to draw up written agreements if they want to be sure of including their own clauses, but not tie up court time enforcing an unnecessary criminal law should they be negligent in drafting the lease. But meanwhile, if you are a landlord, it is your responsibility to provide your tenant with a lease in writing.
The lease must contain, at a minimum, the street address of the premises, the rights and obligations of the landlord and tenant (which must comply with the Act), the deposit amount, the rental amount, any other charges, the frequency of payment and the process to follow if escalation of complaints is necessary.
Landlords are also obliged to ensure the tenant’s deposit is lodged in an interest-bearing account and to repay the deposit plus interest within seven days of the expiry of the lease. During the course of the tenancy the tenant is entitled to request written proof of interest earned on the deposit.
At the start of the lease, landlords must undertake to inspect the property with the tenant to identify any damages or defects. The tenant may insist that sub-standard conditions are rectified before moving in, and the landlord must comply. If the landlord fails to inspect the property with the tenant, then it is assumed that the property is in good condition. Allowance for post-rental inspection is also included in this section of the Act.
Rights of the tenant
In addition to the rights of the tenant implied in the landlord’s obligations above, there are several other tenant’s rights enshrined in the Amendment Act, not forgetting that the tenant also has obligations.
The privacy of tenants is thoroughly protected in the legislation. While landlords reserve the right to inspect the property from time to time, sufficient advance notice must be given. Unannounced, ‘spot’ inspections are not permitted, nor is a search of the premises, unless there is considerable reason to suspect misconduct and a court order has been obtained.
Tenants are entitled to written receipts for all payments made to the landlord, and to receipts for any repairs carried out to the property that may be deducted from the deposit before it is returned at the end of the lease.
Tenants must obtain the landlord’s consent before sub-letting any part of the property, but landlords are expected to grant permission, provided the request is reasonable.
Fit for human habitation
The Rental Housing Amendment Act 35 of 2014 was developed to remedy some of the shortcomings of the original Rental Housing Act 50 of 1999. The Amendment Act aims to improve the regulation of the landlord/tenant relationship and provide tenants with greater protection. It also attempts to strengthen the powers of the Rental Housing Tribunals and create a better appeals process; and most importantly it introduces standards for rental housing, as historically some landlords have exploited desperate tenants by offering woefully sub-standard dwellings for let.
The Amendment Act sets out quite clearly what the landlord’s duties are in terms of the condition of the property and the safety and security of the occupants. The term “habitability” is defined as referring to adequate space; protection from the elements and other threats to health; physical safety of the tenant, the tenant’s household and visitors; and a structurally sound building. Because property owners also have a right to the security and fair treatment of their dwellings, the amended Act offers landlords some protection against malicious damage caused by tenants, with the inclusion of reasonable rules and regulations in lease agreements.
We welcome this as an important step towards improving the quality of housing for some of the most vulnerable in our society and protecting landlords from disrespectful tenants.
A number of clients have asked about the implications of the Amendment Act for tenancy arrangements already in force. Legislation is not usually applied retrospectively. In the case of the Rental Housing Amendment Act 2014, when it is eventually gazetted, the terms of the Act will apply immediately for new lease agreements, and there will be a six-month transitional period to allow existing arrangements to be brought into line with the legislation.
Help is at hand
So don’t panic. But if you own multiple properties and have a large number of tenants, it might be advisable to begin the process of drafting leases in preparation for the new law to come into effect. Six months can pass very quickly, and not providing tenants with a written lease is a criminal offence, punishable by a fine or even up to two years in prison.
At Simon Dippenaar & Associates we are specialists in property law. We act for both landlords and tenants and therefore know the challenges faced by both parties; and we know the legislation as it affects both sides.
Call us now on 087 550 2740 or email firstname.lastname@example.org if you need help complying with the Rental Housing Amendment Act 35 of 2014 when it comes onto the statute books. Don’t leave it until the law is in place.