Introduction

Until the Rental Housing Amendment Act 35 of 2014 (the “Act”) was enacted, the relationship between landlords and tenants and dispute resolution by the Rental Housing Tribunal, was regulated by its predecessor (Act 50 of 1999).

 

According to Bapela and Stoop,[1] the shortcomings of the Act have recently been addressed by the enactment of the Rental Housing Amendment Act, which will come into operation on a date to be proclaimed. As such, although not effective at this point, it’s important for both landlords and tenants to take note of the changes.

 

“The aims of the Amendment Act includes to –

  • set out the rights and obligations of the tenants and landlords in a coherent manner;
  • requires leases to be in writing;
  • extend the application of ch 4 to all provinces; requires Members of the Executive Council (MEC) (the members of the provisional executive council concerned with housing matters) to establish Rental Housing Tribunals in all provinces;
  • extend the powers of the Rental Housing Tribunals;
  • provide for an appeal process;
  • require all local municipalities to have Rental Housing Information Offices;
  • provide for norms and standards related to rental housing and;
  • to extend offences”[2]

Relations between tenants and landlords

Unarguably, the most important amendment, especially on a practical level involves better regulating the relationship between landlord and tenants. Overall, if this is handled better, many evictions and disputes between the parties may be avoided.

 

  • Payment of a deposit

 

The Act contains several detailed provisions dealing with deposits paid in terms of a lease. As previously provided, a landlord may require a tenant to pay a deposit before moving in, which must be deposited in an interest-bearing account. In addition, the landlord to issue a written receipt for all payments received from the tenant (including for payment of the deposit).

 

In addition, the Act also provides now, that the tenant may require the landlord to provide written proof in respect of interest accrued on said deposit. Also, interest accrued on it must be paid to the tenant within 7 days of the expiration of the lease. Importantly, failure by the landlord to repay the deposit is a criminal offence punishable by a fine or imprisonment not exceeding two years or both.

 

Finally, the reasonable cost incurred in repairing damage to the dwelling may be deducted from the deposit, but relevant receipts reflecting these costs must be made available to the tenant for inspection.

 

The framework for better regulation has definitely been welcomed. Specifically, because the investment and repayment of deposits have previously been open to abuse and the root cause of many disputes.

 

  • Inspections

 

Both incoming and outgoing inspections of the property are now legislated. The purpose hereof is to determine the existence of any defects or damage, with a view to determining the landlords’ responsibility to rectify them or to register the defects or damage.

 

Although this has always been a very wise practical measure, this addition is definitely viewed as a step in the right direction. This should create more awareness with both landlords and tenants to properly record the state of a property before and after the tenancy – this will ensure that fault is correctly apportioned.

 

  • Payment of rent and other costs.

 

Another contentious point has been the “hidden costs” related to leases, perhaps more so in the commercial letting environment. However, more and more landlords have been adding direct costs such as utilities, rates and levies to the tenant account without the tenant ever able to check that these are limited to actual costs.

 

An important amendment in this regard is that a tenant is only liable on proof of factual expenditure by the landlord. Although this could result in fairness, how this will be practically implemented remains to be seen.

 

Conclusion

 

These amendments are only some of the amendments brought about by the Amendment Act. Landlords and tenants should consult legal counsel in order to acquaint themselves with all the changes as well as aligning their leases and practices accordingly.

[1] De Rebus March 2016 – Unpacking the Rental Housing Amendment Act 35 of 2014 – Kgopotso Bapela and Philip Stoop.

[2] De Rebus March 2016 – Unpacking the Rental Housing Amendment Act 35 of 2014 – Kgopotso Bapela and Philip Stoop.

About The Author

Nicolene Schoeman-Louw

I founded the firm Schoemanlaw Inc in 2007 aged 24 and am the Managing Director of the firm. I am an admitted attorney of the High Court of South Africa, as well as a Conveyancer , Notary Public and Mediator. I obtained my LLB degree cum laude and successfully completed my LLM degree (dissertation) in commercial law and B-BBEE at the University of the Free State. In addition I obtained my postgraduate diploma in financial planning (CFP) at the University of Stellenbosch. An abstract of my LLM dissertation was published in the Journal for Estate Planning in 2006 and is regularly published in De Rebus (the SA attorneys’ journal) as well as Without Prejudice and Polity.org (legalbriefs). I also write regularly for various online publications such as Spice for Life and other mainstream publications such as The Entrepreneur Magazine, Personal Finance Magazine and have a regular slot on SAfm’s The Law Report with Karen Key. For more information visit http://www.schoemanlaw.co.za/about-us/

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