The Landlord & Tenant: The Rights & Duties of Parties to Residential Leases in South Africa
Peter SA Hendricks
05 April 2010
The rights entrenched in South Africa’s Bill of Rights has had significant impact on the countries rental housing market. The tension between the right to property (section 25 to the Bill) and the right to housing (section 26), with due regard to the right to dignity, equality and privacy has resulted in a new era of rights between landowners and occupants. These rights were carefully entrenched in legislation that displays a respect for both parties. This articlenis not intended to be exhaustive, but simply highlights basic rights and duties.
In the past lease agreements were often concluded between a landlord and a tenant, without reducing it to writing. As a result, much confusion prevailed when it comes to the parties respective rights and duties. In turn, this often led to endless disagreements and sometimes turned into prolonged legal disputes.
The law in this regard has somehow been made clearer, and one can argue justice has been made more accessible, primarily by two legislative Acts. These are The Rental Housing Act No. 50 of 1999, and, The Prevention of Illegal Eviction Act No 789 of 1998. In this part of the series our discussions will focus on the former.
The Rental Housing Act No. 50 of 1999
It became law on 15th December 1999. Amongst the many reasons for the existence of this act, two important reasons are to be singled out for purposes of this discussion. That is that the Act exists to:
“…lay down general principles governing conflict resolution in the rental housing sector…” and
“…provide for the facilitation of sound relations between tenants and landlords and …to lay down general requirements relating to leases…”
In an effort to facilitate the first mentioned objective, the act provides for the establishment of the Rental Housing Tribunal. The said Tribunal is tasked with ensuring that the objectives of the Act are achieved, but, also to receive, hear and consider complaints by either the landlord or the tenant of practices that is unreasonable and prejudicial to the rights of either of them. These are referred to in the act as unfair practices. Section 15(1)(f) to the Act provide that each provinces MEC may make regulations that would clearly spell out what exactly would be an unfair practice under the Act. This means that a landlord and tenant must make sure that they are familiar with the provisions of their provinces regulations in this regard.
Right against Unfair Discrimination
Of note is the particular care the legislatures took, in section 4(1), to prevent unfair discrimination when advertising a place to rent, negotiating a lease. In this regard one very often find advertisements that seeks tenants that are of a particular religious persuasion, gender, etc. Landlords in particular are encouraged to familiarize themselves with this section when compiling an advertisement, and, placing same.
Right to Privacy
A landlord has no right to intercept or access the communications of the tenants. According to section 4 (3) and (4) the tenant, members of his/her household and their visitors has a right not to have their communications infringed, or, without a court order their persons or property searched, and, their possessions seized. In the last mentioned situation, this right does not interfere with the landlord’s common law right to keep back the property of the tenant that is in arrears with his rental, often referred to as the landlord’s tacit hypothic.
Non-Negotiable Rights and Duties
Of particular importance to our discussions is Section 5 to the Act. This section spells out in great detail some of the rights and duties of both the landlord and the tenant.
Below, where possible, we set out the parties corresponding rights as contained in subsection 5(3) of the Act. According to this subsection, although a lease does not have to be in writing as per subsection 5(1), the rights and duties outlined in this table will apply to any lease, whether the lease is in writing or not. Section 5(4) makes it clear that these rights cannot be relinquished by any party to a lease.
Rights with respect to Rental Deposits - Section5(3)(c) and (d)
The landlord is entitled to include a clause in the lease in terms whereof the payment of a deposit, by the tenant, before the latter occupies the dwelling, is provided for. Where the landlord so receive such deposit, it must not exceed an amount that is stipulated in the lease, and, he/she must invest it in an interest bearing account, at an interest rate applicable to a savings account, with a financial institution. This deposit is refundable subject to the conditions spelled out in subsections 5(3)(f)-(m) discussed hereunder.
Right to Inspect before occupation - Section 5(3)(e) read with subsection(7)
Before the tenant occupies the dwelling, the landlord is entitled to inspect it together with the tenant.This is especially important to the tenant as these provisions entitle the parties to compile a list of defects to the dwelling that is to be attached to the lease as an annexure. Having a record of the condition of the premises before the tenancy, greatly help to limit disputes about the condition of the dwelling when the tenant vacate upon expiration of the lease.
Right to Receipts - Section5(3)(a) and (b)
The Tenant is entitled to written receipts from the landlord. In addition to reflecting the amount paid, these receipts must contain:
• The date it is issued;
• The address pertaining to the dwelling;
• What the particular payment is for.
Right to Inspect before expiry of the lease - Subsection (3)(f) read with (g) (h) (j), (k) (l) and (m)
Three days before the expiration of the lease, the landlord is entitled to inspect the dwelling together with the tenant to ascertain if there was any damage caused during the tenancy. Where the inspection took place and the dwelling is found to be in need of repair due to the tenancy, the landlord can deduct the cost of repair from the deposit and interest. Where the deposit and interest was employed for repairs, the balance has to be returned to the tenant within 14 days after restoration the dwelling. The landlord is further obliged to give access to the tenant, and allow him/her to inspect, all relevant receipts for which the amount of deductions were applied.
It is important to note however that where the tenant fails to respond when so requested, the landlord must so inspect within 7 days before the lease expires. Within 21 days after the expiration of the lease return the balance of the deposit and interest to the tenant, after having deducted the costs of repair or replacement of keys. The tenant is entitled to have access to and inspect all relevant receipts for which the amount of deductions was applied.
Where the landlord failed to inspect, it shall be deemed that the tenant left the place in a good and proper state of repair. In such a case the landlord is obliged to return to the tenant the deposit together with the accumulated interest, after having deducted any other amount owing in terms of the lease, within 7 days after it expired.
As indicated before, a lease does not have to be in writing, but should a tenant request that it be reduced to writing the landlord is compelled by subsection 5(2) to present it in written form.
Right to Payment and Occupation
In terms of section 4(5) the landlord has a right to be paid promptly and regularly the amounts due for rental or any other charges payable in terms of the lease. Where a tenant fails to pay the amounts outstanding the landlord may recover the amounts due and payable not only by obtaining a court order, but could alternatively do so after a favorable ruling from the Rental Housing Tribunal.
According to section 26(3) of the Bill of Rights in the South African constitution, “No-one may be evicted from their home…without an order of court…” In accord with this provision a landlord does not have the right to simply forcefully remove tenants from a dwelling. Subsection 4(5) (d)(ii) provides that only after a landlord obtained a court order to do so may he repossess the dwelling. This aspect will be discussed in more detail in Part II to this series.
Conclusion
It is important to understand that the provisions of this Act do remove neither of the landlord’s and tenant’s rights in terms of South Africa’s common law. These common law rights include the right to cancel the agreement in cases of a material breach of the lease agreement, to claim damage suffered by either of the parties because of such breaches, or, to enforce any other right established in terms of a lease agreement.
What the Act has done is brought more certainty to rights especially with regard to verbal leases, created more avenues through which some of the rights in a lease can be enforced, and, aligned our common law somewhat better with the provisions in the Bill of Rights.
In essence The Rental Housing Act is a tremendous step in ensuring access to justice insofar as the rights of landlords and tenants are concerned.
