(As featured on: The Real Estate Investor Magazine April 2019 by Cape Town law firm SDLAW*)
The Rental Housing Act 50 of 1999 governs the relationship between landlord and tenant. However, practical and statutory weaknesses have made it difficult to enforce. Enter the Rental Housing Amendment Act 35 of 2014. The Amendment Act increases the rights of tenants and obligations of landlords and firms up the rules regarding inspections, deposits, the condition of a property and what should be included in the lease.
While the long-anticipated Amendment Act is yet to be gazetted, what is certain is that both landlords and tenants will be required to comply with the provisions of the Act within six months of it coming into effect.
Both landlords and tenants are therefore advised to take the time to familiarise themselves with the provisions of the Amendment Act.
Tenants: your rights are already protected by the Rental Housing Act, common law, and the Consumer Protection Act, but make sure you understand your rights and obligations under the revised Act.
Landlords: if you do not comply with the Act you could face a fine or up to two years in prison, and although imprisonment is unlikely, it is a possibility.
While this threat of criminal liability for non-compliance has sparked concern, the legal certainty the Amendment Act provides should improve landlord/tenant relationships. The clarity and security of well-defined lease agreements could also stimulate foreign investment with its concomitant spin-offs.
So, make sure you understand the Amendment Act as well as your rights and responsibilities. As long as you comply with the legislation, there is no reason to worry.
The Amendment Act in a nutshell
The new legislation requires landlords to provide tenants with a written lease agreement. Verbal agreements will no longer be binding. ‘Get it in writing’ has always been sage advice. It still is.
Properties must be ‘habitable’. This is defined as a dwelling that is structurally sound and suitable for living in, has adequate space, and provides protection from the elements and access to basic services such as water and electricity.
Property owners are also entitled to ensure that their property is treated with respect and the Act protects landlords from tenants who cause malicious damage to a rental property.
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 property is assumed to be in good condition and 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 cannot lock a tenant out of the property without a court order. This rule gives the tenant security of tenure and makes sure that the landlord follows procedure if there is a grievance.
Tenants are entitled to privacy and, while landlords can inspect the property from time to time, unannounced ‘spot’ inspections are not permissible. Sufficient advance notice is required.
What about existing lease agreements?
When it is finally gazetted, the Rental Housing Amendment Act will apply immediately to new lease agreements and landlords will have six months to bring existing agreements in line with the new legislation. What is not clear is how non-compliance will be enforced and whether, for example, a verbal agreement becomes null and void. And if so, from what point in time?
The bottom line
The Rental Housing Amendment Act 35 of 2014 attempts to remedy shortcomings of the Rental Housing Act 50 of 1999, improve landlord/tenant relationships and provide better protection for tenants.
Historically some landlords have exploited desperate tenants by renting out sub-standard properties. The Amendment Act spells out standards for rental housing – a significant step towards improving the quality of housing accessible to the most vulnerable in our society.
Although the landlord’s obligations are more onerous under the Amendment Act, the legislation protects the landlord’s property interests as well and going forward tenants will have to comply with certain revised terms and conditions in their lease agreements. This will weed out the ‘good’ tenants from the ‘bad’.
Get compliant now
The Amendment Act makes it a criminal offence to not have a written lease agreement. So, if you don’t have a written agreement in place, now is the time to draft one. Six months sounds long but as you know, time flies. And for the tenants out there, make sure you are au fait with your rights and obligations too.
Contact us
Don’t wait until the last minute to comply with the Rental Housing Amendment Act. Cape Town Lawyers Simon Dippenaar & Associates Inc. are property law experts and act for both landlords and tenants. Call us on +27 (0) 86 099 5146 or email sdippenaar@sdlaw.co.za if you need help drafting a lease agreement or for any property-related matters. One of our Cape Town Attorneys will contact you back.
*SDLAW aka Simon Dippenaar & Associates Inc. is a law firm of specialised eviction attorneys in Cape Town, and now Johannesburg, and Durban offering specialised eviction services to both landlords and tenants across South Africa.