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Chapter 10 - Land and Housing

Renting a home

Tenants, landlords and leases

If you pay to rent a house, you are called a tenant, or a lessee. The owner of the house is called the landlord or lessor. The tenant and landlord have an agreement, called a lease. The lease can be for a fixed time, in which case the landlord does not have to give you notice to end the lease and you must leave the house on the date when the lease ends, unless the lease is renewed by agreement with the landlord. The landlord cannot make you leave before the date when the lease ends, unless you break a condition of the lease, for example, if you do not pay rent on time. The lease can also be for an indefinite time where there is no time limit on the lease. In this case the landlord can only end the lease by giving you notice as prescribed in the lease agreement. If there is no lease agreement then the notice given should be reasonable. If you think the notice was unreasonable, you can take the case to court where it will be decided whether the notice was reasonable or not.

See Problem 8: Common problems in renting a house or flat.

Where people rent their houses from the local authority or town council, then it is the local authority who will decide who can get a house.

The Rental Housing Act, No 50 of 1999

The Rental Housing Act controls the relationship between landlords and tenants in the private rental sector. The Act protects tenants from landlords for example, if they charge very high rentals for bad accommodation. It also protects landlords from tenants for example, tenant committees that hold back rent money or try to take over the running of buildings. It provides for mechanisms to resolve disputes, for the establishment of Rental Housing Tribunals and a system for building positive relationships between landlords and tenants. The Act applies to all written or verbal residential lease agreements entered into on or after 1st August 2000.

The Rental Housing Amendment (RHA) Act, 2007 was passed by Parliament to address some administrative issues and implementation of the 1999 Act. One of the most important changes is the definition of “unfair practice.” An unfair practice is any act or omission by either a landlord or tenant that goes against the Act or the Unfair Practice Regulations. The new Unfair Practice Regulations are expected to come into force by mid-2008.

The following is a brief list of some of the rights and duties of landlords and tenants. These are either already in the Act or will appear in the Unfair Practice Regulations when they are published.

What are the rights and responsibilities of landlords and tenants?

A landlord has the right to:

• prompt and regular payment
• Recover debt after an order of court has been obtained
• Terminate a lease on grounds not deemed unfair and as specified in the lease agreement
• Upon termination of a lease, receive the property back in good state and repossess the property after an order of court has been obtained
• Claim compensation for damages/improvements

The tenant also has a right not to have:

• Not have his/her person or residence searched
• Receive vistors
• Not have his/her property searched
• Not have his her possessions seized without an order of the court
• Privacy of communication

What are the duties of landlords and tenant?

A landlord a duty to:

• ensure that the premises is in a safe and livable condition when rented out
• allow the tenant to receive visitors
• place the tenant’s security deposit in a savings account which has the highest rate of interest for that financial institution
• return the security deposit, plus all interest accrued, to the tenant minus any costs for reasonable repairs for damages caused by the tenant
• provide proof to the tenant of any costs incurred through having a lease drawn up when passing on such costs to the tenant

A tenant has a duty to:

• pay the rent on time as specified by the lease
• keep the dwelling/property clean and tidy
• not use the premises for an improper purpose (for example, overcrowding, illegal activities and unregistered retail)
• at the end of the lease, return the property to the landlord in the same condition minus reasonable wear and tear
• keep to the provisions of the lease as long as all the provisions are legal

Rental Housing Tribunals

The Act provides for the establishment of Rental Housing Tribunals in all the provinces. The Act gives the Tribunals the powers to make rulings that are the same as the ruling of a magistrate's court. The service they provide is free. To be clear on what your rights and obligations are, refer to the Unfair Practices Regulations. These deal with:

• Changing of locks
• Deposits
• Damage to property
• Demolitions and conversions
• Eviction
• Forced entry and obstruction of entry
• House rules
• Intimidation
• Issuing of receipts
• Tenants committees
• Municipal services
• Nuisances
• Maintenance
• Reconstruction and refurbishments

An important change brought about by the Rental Housing Amendment (RHA) Act, 2007 is the expansion of the powers of the Residential Housing Tribunal.

New Tribunal Powers

1. Spoliation orders: This prevents a landlord or tenant from taking the law into their own hands by seizing goods. A spoliation order restores the property to the owner while waiting for a full hearing on the matter.

For example: A landlord claims that a tenant owes him back-rent and removes a fridge (which came with the house as part of the lease) that the tenant needs. The tenant can lodge a complaint with the Tribunal which can now make a Spoliation order forcing the landlord to return the fridge.

2. Interdictions: These are orders which would prevent a landlord or tenant from continuing with a certain action or require either party to undertake a particular action. The complaining party alleges that such an action, or the lack of an action, is an Unfair Practice.

Example A: A tenant allows rubbish to gather around the property and does not respond to requests to remove it. The landlord can apply for an interdiction obliging the tenant to remove the rubbish and to keep the property clean in future.

Example B: The landlord makes frequent unwelcome visits to the rented house and the tenant feels harassed. The tenant can approach the Tribunal for an interdiction against the landlord obliging him to respect the tenant’s privacy (“quiet enjoyment.”)

3. Attachment orders: A landlord would usually try and get an attachment order for the tenant’s property once the Tribunal has determined that back rent owing to the landlord has not been paid and following an interdiction against the tenant

Spoliation orders would generally be sought by the tenant against the landlord. Interdictions, however, are likely to be sought by either a landlord or tenant in various situations where one party is alleging that the other is committing an unfair practice. Attachment orders would usually be sought by a landlord against a tenant.

Making a complaint to the Rental Housing Tribunal

- - Complaints must be lodged on the prescribed complaint form which you can get from the Tribunal.

- A case file will be opened and a reference number allocated.

- The Tribunal will conduct a preliminary investigation to determine whether the complaint relates to a dispute over which they have authority.

- An inspector may inspect the property and draw up a report if necessary.

- The Tribunal must, within 30 days of receiving the complaint, decide whether the complaint relates to a dispute over which they have authority.

- If they don’t have authority, they must notify the complainant in writing.

- If they do have authority, they must try to resolve the matter with informal or formal mediation.

- If the parties are unable to reach an agreement, the case will be referred for a ruling at a formal hearing.

Who can lodge a complaint?

Any tenant or landlord or group of tenants or landlords or interest group can lodge a complaint to the tribunal.

Review of the Rental Housing Tribunal proceedings

If a person feels dissatisfied with the proceedings of the tribunal, they can take this on review to the High Court but they will have to pay the costs of this.

See Problem 8: Common problems in renting a house or flat.

What happens if parties do not follow the ruling of the Tribunal?

A ruling by the Tribunal is like an order of a magistrate’s court and must be enforced in exactly the same way. People can be fined or sent to prison for up to two years if they do the following:

- fail to attend a hearing without good cause

- refuse to be sworn in

- refuse to produce any document or object in his or her possession

- try to deceive the Tribunal

- make false statements

- go against (contravene)any regulation or refuse to obey an order of the Tribunal,

Where do you lodge a complaint

Look in the resources section for contact details on the Rental Housing Tribunals.

Tribunal regulations

The procedures of the Rental Housing Tribunal will be governed by a new national set of regulations. These Procedural Regulations are important because a landlord or tenant will be able to challenge a Tribunal’s ruling if she/he can prove that the Tribunal did not follow its own procedure. The new regulations are expected to be operational from mid-2008.

Evictions from rented property

There is no longer a common law right for an owner to evict someone from his or her property. The Supreme Court of Appeal has determined that defaulting tenants, in other words, tenants who have not paid their rent, must be treated in exactly the same way as all other illegal occupiers. This means that the owner or landlord must follow the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (except in areas where ESTA operates) if they want to evict a tenant. So, defaulting tenants are entitled to the same types of procedural protection before they are evicted, such as notice of the intention to evict as well as (at least) 14 days notice of the court hearing. This notice must also be sent to the municipality. The court will assess whether the person is an unlawful occupier and whether the owner has reasonable grounds to evict them. In its decision, the Court will take into account whether there is alternative accommodation available.

The Rental Housing Tribunal does NOT have the authority to hear eviction cases, A landlord cannot, therefore, begin an eviction proceeding at the Tribunal. This can only be done in an ordinary court of law.

Evicting a tenant without a court order (for example, changing the locks when the tenant is out) is now a criminal offence and the landlord could face a prison sentence. It is also an offence for the landlord to cut off water or electricity without a court order, sometimes called a “constructive eviction.”

Trespassing

Trespassers are people who go onto someone else's land, without permission from the owner or the lawful occupier. The Trespass Act gives the police the right to arrest a trespasser. If the court finds you guilty, you can get a fine or a jail sentence. In this way the owner can get you arrested if you are on their land illegally. An owner cannot use the Trespass Act as a way of getting people evicted from their homes – this must go through the PIE Act.

See Problem 2: Being arrested and charged with trespassing.