Changes
to the rental housing environment have been proposed with the Rental
Housing Amendment Act. Although at first glance, the proposed changes
may not seem overly dramatic in nature, a closer study does reveal
implications both for landlords and tenants. Any person that contravenes
the Act can be held liable and face criminal charges, but landlords
specifically are a focus of the proposed legislation.
To start with, tenants may now ask for written receipts for all
payments made, which include dates, a description of the property to
which they relate and details of the purpose for which payments were
made eg. rental payments, arrears, deposits etc, as well as for which
period the payments were made. This can help a tenant with proper
recordkeeping of payments made and serve as proof against allegations of
non-payment.
The landlord can also not unreasonably withhold consent for the
subletting of the property. What is meant with “unreasonable” will have
to be established by the Provincial Rental Housing Tribunal (“Tribunal”)
or a court of law.
Landlords must also invest the deposits they receive from tenants in an
interest bearing account at any financial institution, for which
interest accrued may not be less than from a savings account. The tenant
may also request the landlord during the period of the lease to provide
him with written proof of the interest accrued on the deposit and the
landlord must provide such proof. Granted, the investing of the
deposit received from the tenant is not a new regulation - but the
legislator intends making it tougher not to comply with as the landlord
can face up to two years in jail or a fine if contravened.
In addition the responsibility now falls to the landlord to arrange for a
joint inspection with the tenant at the termination of the lease on a
date and time that suits both parties. Importantly, this is not
a joint responsibility but a responsibility of the landlord. If not
done by the landlord it is assumed that the property was returned in
good order and the landlord cannot withhold the deposit for repairs or
maintenance.
Furthermore tenants must be provided with fit and suitable accommodation
to live in. If a tenant’s health or safety is compromised, the landlord
can be held liable. How onerous this right will be in reality only time
will tell, and would in our view have to incorporate some measurement
of reasonableness in any evaluation.
An interesting inclusion is the requirement that all lease agreements
must now be in writing, and that the Minister of Human Settlements will
create a standard lease agreement to be used in all official eleven
languages. Making written lease agreements compulsory will make the
evidence of lease terms easier and help protect tenants against
unscrupulous landlords, and landlords in turn against tenants that
refuse to pay rent claiming no agreement exists. That said, formalising a
written contract for something as basic as a R500 rental for a few
months could be excessive. Other questions arise, such as what happens
if the lease is not in writing – is it void from the beginning or
voidable? Can parties sign different language versions of the rental
agreement, and what will happen if there is a discrepancy in
interpretation? These scenarios will have to be addressed to avoid more
rather than less confusion.
Despite certain question marks regarding the practicalities of the
proposed amendments, the intent of the legislature is positive in
seeking to reduce uncertainty and abuse in the rental environment. Once
implemented landlords in particular, given the criminalisation of
transgressions, will need to review their current rental processes and
agreements and ensure compliance with the new amendments.
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