Although the Consumer Protection Act 68 of 2008 has some impact on the relationship between Landlords and Tenants in renting residential property, the Rental Housing Act of 1999 is still paramount and is in almost no way superseded by the Consumer Protection Act (CPA).
Pervasive publicity concerning the CPA has led to certain unfortunate perceptions relating to the complicated subject of landlord-tenant relationships.
Tenants appear to have taken up the notion that they are now in a freewheeling relationship with Landlord’s and are entitled to behave in any manner which they choose with the Landlord bearing the burden thereof.
The reality is that in residential property rental matters the Rental Housing Act of 1999 is still supreme and the CPA has little impact on the relationship between Landlord and Tenant.
It is a worthwhile exercise for both Landlords and Tenants to become intimately acquainted with the Act and its regulations.
The greatest advantage of the Act is that, whilst it places demands on both Landlord and Tenant, it is also fair to both, as long as they have fulfilled their obligations.
Key elements to be considered by Landlords and Tenants:
1. Termination and Breaches:
If a lease expires and the landlord agrees to the tenant staying on without signing a new lease, the lease continues on the same terms as before, except that either party (landlord or tenant) may terminate the agreement on one month’s notice.
It is always advisable to sign a new lease at the termination of the previous agreement. It is the best way to ensure that the relationship between the parties is satisfactorily regulated.
Further, in terms of the CPA, in certain circumstances, the tenant has the right to cancel the lease at any time subject to giving 20 business days’ written notice to the Landlord. However, if this cancellation right is exercised, the CPA also stipulates that the landlord is entitled to a ‘reasonable’ cancellation fee and this could be as high as three months rental.
However, if the tenant is replaced quickly, the cancellation charge will generally be much lower as the financial impact on the Landlord is minimised.
If the CPA applies to a lease, the Landlord may cancel the agreement 20 business days after giving written notice to the Tenant of a material breach, unless the Tenant has remedied the breach within that period. The decision to terminate lies with the Landlord in this instance and the landlord is also entitled to a ‘reasonable’ cancellation fee.
If the CPA does not apply to the lease, then termination may only take place in terms of the lease.
2. Limited maintenance responsibilities of the Landlord prior to a tenant taking occupation:
It is a common misconception that it is the Landlords responsibility to ensure that the premises are in pristine condition prior to the tenant taking occupation and during the currency of the lease.
The Landlord’s responsibility does not legally extend beyond ensuring that the premises are ‘habitable’, which generally means that it is reasonably clean and that everything is in working order, e.g. lights, plugs, shower, etc.
The Landlord is not, for example, required to have all the carpets and curtains dry-cleaned or to have all stains on the walls and floors removed before the tenant takes occupation.
3. The lease agreement does not have to be in writing:
However, if the tenant requests that the Landlord reduces the agreement to writing, the Landlord is obliged to do so.
It is preferable that the terms agreed are reduced to writing, as it helps to be able to refer to a written record of the agreement.
A lease agreement, however, is one of the few cases in property law where a verbal agreement, if it can be substantiated, is in fact binding.
The act makes an ingoing inspection of the premises, with the landlord and the tenant meeting together on a stipulated day, as well as, an outgoing inspection when the lease expires, mandatory.
The Landlord is required to invite the tenant to the outgoing inspection and should the tenant fail to attend, the Landlord may then assess the damages on the premises and deduct same from the deposit, if any, or claim it from the tenant directly should the deposit be insufficient.
Should the Landlord fail to attend to an outgoing inspection, the premises are deemed to be in good order and the deposit must be paid back in full.
This has very serious implications if the landlord’s claims for damages are high.
Landlords should, however, be careful not to over-claim on conventional wear and tear items which in fact are not really damages.
It is, therefore, particularly important for the tenant to be invited to attend the outgoing inspection, regardless of a deteriorated relationship between the parties.
In the Western Cape Province it is not sufficient to be familiar with the clauses of the Rental Housing Act only, as this Act is coupled with the Unfair Practices Regulations when dealing with residential property.
The preamble of the Act recognises that there is a need to balance the rights of tenants and landlords and to create mechanisms to protect both tenants and landlords against unfair practices and exploitation. Accordingly, a better understanding of the Act and its regulations will encourage an enhanced relationship between landlord and tenant.
The Rental Housing Tribunal’s function is to ensure that unfair practices between landlords and tenants are eliminated and therefore it interprets both the Act and the Regulations in its deliberations.
4. A summary of the Unfair Practice Regulations:
Changing of locks
Locks of a property may only be changed where it is necessary due to fair wear and tear and with reasonable notice being given to the other party and new duplicate keys being provided to both.
Conditions and maintenance
The condition of a property at the onset must be reasonably fit for the purpose for which it is let.
A landlord must comply with all Provincial Ordinances, Health and Safety Regulations or any other relevant laws in maintaining the premises.
The landlord must provide all services to a property as agreed in the lease.
The landlord must effect necessary repairs not later than 30 days after ingoing inspection or due notice of required repairs being received from the tenant. The parties may agree on a further period, should circumstances require it.
Reconstruction, refurbishment, conversion or demolition
A landlord may only request that a tenant vacate a property if the contemplated repairs cannot be undertaken whilst a tenant is living in the premises.
A landlord may only cancel a lease if the property becomes derelict and is no longer habitable.
During repairing of a property, the tenant must be given a remission in rent as compensation for inconvenience and limited use.
Necessary repairs must commence as soon as possible in order to limit the inconvenience to the tenant.
A landlord must ensure that the tenant is able to return to the property as soon as the repairs are completed.
A tenant may not cancel a lease due to temporary inhabitability of the property unless same would be devastating to the tenant.
A tenant may cancel a lease unless it can be proved that the repairs to the property could not reasonably have been foreseen by the landlord at the time the lease was entered into.
A landlord may only enter the leased property after giving the tenant reasonable notice and then only for the following reasons:
- To inspect the property;
- To make repairs;
- To show the property to prospective tenants, purchasers, mortgagees or their agent;
- If the property has been abandoned; or
- Having obtained a court order.
A tenant must allow a landlord entry in these circumstances, as long as it is carried out at reasonable times on reasonable notice.
A landlord is obligated to give a tenant a detailed receipt for the deposit, rental, services or any other amounts paid by the tenant to the landlord.
Municipal services must be provided in terms of the lease and the landlord may not charge a tenant more than the exact cost of services consumed in the property if there is a separate meter.
Where a property is separately metered for services and the landlord bills the tenant directly the landlord must provide the tenant with a monthly statement.
Every monthly invoice or statement must contain the following:
-names of landlord & tenant and the physical address of property
-name, address & telephone number of each service provider
-previous & current months meter readings
-actual consumption for each service and the amounts being charged
-total payment due
-date of next meter reading
-amount of any arrears
A landlord is not, under any circumstances allowed to turn off utilities to the rented premises or property. It is a criminal offence to cut off electricity or water.
Services may only be interrupted for the following reasons:
– an emergency; or
-maintenance or repairs are required; and
-after reasonable notice has been given to the tenant.
If in doubt, take advice from a professional!