Looking at South Africa’s Rental Housing Tribunal
The rental housing tribunal is one of the many tools available to the property professional in South Africa and when used correctly it can provide significant value to your letting business. We take a closer look at what the tribunal does, the latest legislation that regulates it and how it fares against similar organisations around the world.
The rental housing tribunal is an organisation in South Africa that seeks to balance the rights of landlords and tenants in the residential leasing environment. It often deals with and resolves disputes that arise between tenants and landlords by applying the provisions set out in the Rental Housing Act (RHA). The tribunal provides a free service, one that seeks to ensure equality between tenants and landlords and to educate tenants and landlords about their rights and obligations under the RHA and the Unfair Practice Regulations.
Benefits to the Property Industry
Dexter Leite, rental manager for Pam Golding Properties in the Western Cape, says, “The rental housing tribunals regulate and balance the relationship between (residential) landlords and tenants by virtue of the legislative framework imposed on residential leases through the RHA and the Unfair Practices Regulations, which seek to ensure that unfair practices between landlords and tenants are (a) defined and (b) eliminated.”
The Unfair Practices Regulations are extensively detailed, Leite explains. For example, they prevent landlords from unilaterally changing locks, unless this is necessary owing to fair wear and tear and is agreed upon by both parties. Also, according to the regulations, the premises must, from the commencement of the lease, be reasonably fit for the purposes for which they are let.
The Unfair Practices Regulations provide detailed explanations as to how the requirements of the Act are to be implemented.
Tribunals deal with disputes either informally – advising, guiding and mediating between the relevant parties – or by way of formal hearings, where evidence can be led and witnesses can be called to testify by landlords or tenants respectively.
Helen Henning, principal of Seeff Rentals Pretoria East, says the tribunals help the industry and tenants “by providing a cheap alternative to costly and time-consuming legal processes”. “Many disputes can be solved by having an independent mediator between the parties,” Henning continues. “I have found the advocates at the initial hearings to be fair and balanced in the main. A common issue before the tribunals is the return of deposits. Critical here is compliance with the legal requirement to carry out ingoing and outgoing inspections of the property. A detailed and effective inspection is best. The only allowable deductions are those that are allowed in terms of the lease. Invoices or other documentation must be produced to provide evidence of the need to deduct the amounts in dispute.”
Tracy Pugin, principal of Seeff Rentals Randburg, says, “This is a free service to the public; they are quick, and insist on a timeframe in which a landlord must respond. Agents often refer tenants and landlords to the tribunal if no agreement can be finalised between them. We find the tribunal really convenient, as agents don’t always have all the answers and we can turn to the tribunal for advice. The lease is there to protect both landlord and tenant, but we have many instances where tenants and landlords just disregard the lease. This is where it is especially handy to have the tribunal.”
Types of Disputes Dealt with by the Tribunal
• Failure to adequately maintain the premises
• Unlawful repossession of and unlawful evictions from the property
• Failure to accept notice and vacate the premises
• Unlawful seizure of possessions
• Failure of a landlord to provide municipal services
• Attempts by either party to unilaterally change the terms of the lease agreement
• Unlawful notices to vacate the premises
It is vital that estate agents who manage and let properties are familiar with the functions of the rental housing tribunal and the Rental Housing Act. Knowing and understanding the Act puts agents in the position to make the laws and regulations governing the landlord-lessee relationship work for them. And with legislation continually evolving, estate agents who keep up to date on the latest amendments will benefit even more.
Drawbacks of Using the Tribunal
Says Leite, “The tribunals are not accessible to all, although hearings and mediations are dealt with as close to the complaint as is practical and possible. They do not have a defined appeals process, although a review process is provided for. The determination or mediation by a rental housing tribunal is governed by the member’s knowledge of the leasing process, the environment and the laws governing it.
“There is a large, ‘informal’ rental market where, in its simplest form, rooms in houses, on properties, in backyards and so on are rented. This is a complex social matter: these tenants do not necessarily have knowledge of or access to rental housing tribunals and there is risk of exploitation. (This is not our target market but these social problems and challenges do exist).
“The process can be exploited by serial complainers, wasting time and resources. No costs are awarded: all parties carry their own costs in preparation, time, travel expenses and the like.
“Other feedback given by people who have used the rental housing tribunal is that most of the offices are manned by call centre personnel, and one drawback to this is that the answer time for calls can be especially long. It is also difficult to ensure that every person who is answering calls and dealing with tenants or landlords is well versed in the specifics of the rental housing tribunal.
Improving the Rental Housing Tribunal
The rental housing tribunal organisation as a whole could be improved through the use of one concise website for the public and estate agents, explaining what the tribunal does, where their nearest office or branch that can help them is and how to go about utilising this service.
In addition, literature that is easy to understand and well written would greatly help tenants who don’t necessarily need to utilise the services of the tribunal but could benefit from education on their rights.
Says Henning, “The service could be improved if a lot of issues could be identified and dealt with via a ‘ruling’ or guideline approach to common complaints or problems. “My advice to those seeking relief from the rental housing tribunal is to go well prepared. Stick to facts and resist the urge to be emotional. I would advise any agent called to a hearing to take all relevant documentation.”
The Rental Housing Amendment Bill of 2014 was signed into law by President Jacob Zuma on 5 November 2014. While the date for its promulgation has not yet been announced, once it is, tenants and landowners in South Africa will have six months before additional or amended obligations become effective.
How will this affect tenants and landlords? Below are the main points that all estate agents should be aware.
“Habitability” is now included in the amendments, as a dwelling that is safe and suitable for living in with adequate space, protection from the elements and other threats to health, physical safety of the tenant, the tenant’s household and visitors, and a structurally sound building.
Training of members or commissioner and staff is now a national mandate to ensure the public receives a better service.
“The national government must develop and fund programmes to train members of the tribunals and officials appointed in terms of section 14(2).”
The tribunal provides a free service, one that seeks to ensure equality between tenants and landlords and to educate tenants and landlords about their rights and obligations under the rental housing act and the unfair practice regulations.
• “Landowner”, as a gender-neutral term, will replace ‘landlord’, in keeping with the constitutional mandate to develop the common law.
• All leases must be in writing.
• The minister is required to provide a pro forma lease in 11 official languages.
• The law formulated by South African courts more than a century ago, namely that the landlord is under duty to deliver and maintain the property in a condition reasonably fit for the purpose for which it has been let, will now change to “habitability”.
• The common law position regarding the tenant’s acceptance of the dwelling in a state of disrepair or taking over the landlord’s common law duty to maintain by contracting out of the common law, will no longer apply. This is due to the introduction of the definition of “maintenance that includes such repairs and upkeep as may be required to ensure that a dwelling is in a habitable condition…”
• In terms of section 4B 11, a landowner is now required to provide a dwelling that is in a habitable condition, as well as maintain the existing structure of the dwelling and, where possible, facilitate the provision of basic services to the dwelling.
• The composition of the tribunal will also change. The number of members will increase to seven, with not more than two legal practitioners.
• Two simultaneous hearings in a province can be held. The tribunal becomes two committees with a minimum of three members or commissioners for each sitting.
• An aggrieved party can appeal the tribunal’s decision to a panel of adjudicators, so that the aggrieved party does not have to incur legal costs for an appeal to the High Court.
• The MEC for human settlements is tasked with setting up the panel. A party will still have the right to bring the tribunal’s proceedings under review, including an appeal adjudicated by the appeals panel.
• Rental housing information offices must be established by municipalities, to provide advice to tenants and landowners.
• The minister of human settlements must alleviate hardships experienced by tenants by monitoring, assessing and developing relief measures and other social programmes for poor and vulnerable tenants and those with disabilities.
• Many of these points will ensure that the rental housing tribunal functions more efficiently and which highlight the efficiency and progression of the South African property industry.
Comparing the rental housing tribunal system and the proposed amendments to the Act to others around the globe, the South African system is fairly progressive and in line with its international counterparts.
In Australia, for example, there are two governing bodies that settle disputes in the residential property sector. The first is the Queensland Civil and Administrative Tribunal, and the other is the Residential Tenancies Authority. They both decide on a range of residential tenancy disputes that mirror those of the residential housing tribunal, but one service they offer that isn’t available in South Africa is dispute resolution over the phone between both parties.
In Germany and America there are local tenants’ unions and associations that provide support to resolve disputes before the legal route is taken. These are not associated with the government but are independent bodies set up through regions or neighbourhoods.
While the United Kingdom has a system similar to South Africa’s, a first-tier tribunal called a property chamber for residential property has five regional offices that provide an independent service in the UK for settling disputes involving private rented and leasehold property.
When you compare the dispute resolution services offered by South Africa to those offered on a global scale, it is fantastic to see that we are on par with global standards.
While there are improvements that could be made to ensure the tribunal functions more efficiently, the proposed changes that will come into play during 2015 will see the rental housing tribunal reach new heights and ensure that South Africa remains on par with global standards in residential property dispute resolution.
Words: Angelique Redmond