The Rental Housing Amendment Act, 35 of 2014 (“Amendment Act) is the newly proposedAmendment Act to the current Rental Housing Act, 50 of 1999 (“Rental Housing Act”).
It would come to question as to what brought about the proposal of the amendment of the Rental Housing Act and the material changes that have been introduced in the proposed Amendment Act.
In a landlord (this term has been substituted to Landowner in the Amendment Act) and tenant relationship, the tenant is often in a vulnerable position. The tenant, needing housing/dwelling, is often compelled to accept the terms and conditions set by the landlord in the lease agreement.
Landlords are able set the terms of the lease agreement without being obliged to comply to the rules and regulations set in law. It is for such reasons that the Amendment Act has substituted Chapter 3 of the Rental Housing Act which deals with the “Relations between Landlord and Tenant” with the heading “Rights and Obligations of Landlords and Tenants”.
The Rental Housing Act places measures to regulate the landlord and tenant relationship although it often falls short. Despite the availability of common law and the Consumer Protection Act, 68 of 2008, in regulating the landlord and tenant relationship, there are disputes which could not be resolved in fairness and in the interest of justice. The introduction of the Amendment Act seeks to cater for these shortfalls.
The importance of introducing the Amendment Act was made mindful of section 25 (1) and section 26 (1)-(3) of the Constitution of the Republic of South Africa (“the Constitution”).
Section 26 of the Constitution provides that:
- “Everyone has the right to have access to adequate housing”;
- “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right”;
- “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions”.
The Amendment Act has introduced provisions that seek to promote social justice. The Amendment Act intends on substituting the definition of “Minister” to mean Minister of Human Settlements instead of Housing (section 1(d)).
In the Rental Housing Act, MEC’s have a discretion as to whether or not to establish a Rental Housing Tribunal in the Province (section 7). However, the proposed Amendment Act has made it mandatory for the MEC to establish a Rental Housing Tribunal in the Province.
In the proposed Amendment Act, tribunals will be given the necessary powers to resolve disputes and pass orders (section 13(12A)) and have appeal procedures for an aggrieved party (section 17A). Before the proposed amendment, the Rental Housing Act was criticised for being ‘toothless’ as this was based on its incapability to enforce its rulings. The MEC will further be required to ensure that all Municipalities have Rental Housing Information Offices. This ensures accessibility of the law to the public.
It is not a formality in the Rental Housing Act for a lease agreement to be writing. The landlord must reduce it into writing upon request by the tenant (section 5(2)). The proposed Amendment Act makes it compulsory for a lease agreement to be reduced into writing (section 5(1)(a)). This is mainly to overcome the number of disputes based on oral agreements which are difficult to prove.
Another major introduction to the proposed Amendment Act is section 4B, which requires the landlord to invest the deposit amount into an interest-bearing account. The deposit plus accrued interest will be refunded to the tenant upon termination of the lease, after having considered any damages caused by the tenant to the property. It is therefore crucial that the tenant and the landlord inspect the premises jointly before the tenant moves inside the premises and within three (3) days prior to the expiration of the lease. In the event the landlord fails to conduct the joint inspection, it will be deemed that he/she is satisfied that the property is in a good condition (section 4B 4-5).
The proposed Amendment Act has created new offences which are punishable by law (section 16 (aA) and 16(bB). Landlords may face either imprisonment or a fine for failing to comply with the following but not limited to:
- Providing a written lease agreement to the tenant;
- Providing a habitable dwelling and maintaining the premises;
- Refunding the security deposit without interest;
- Cutting the utilities of the premises, e.g. electricity or water; or
- Denying the tenant access to the premises, e.g. lockouts.
It is important that everyone takes an interest in the proposed Amendment Act because once the Amendment Act has been promulgated, the Landlord will be given an opportunity of six (6) months from date of promulgation to ensure that their lease agreement with their tenant do conform with the Amendment Act.
Author: Zilungile Stimela