Amended Rental Housing Act increases risk of non-compliance for landlords

Amended Rental Housing Act increases risk of non-compliance for landlords

MAIN IMAGE: Advocate Marlon Shevelew

By Marlon Shevelew

The Rental Housing Amendment Act, 2014, proposes a number of new amendments which property practitioners should bear in mind to avoid potential criminal charges once this act is promulgated.  This article will focus on these amendments as read with the offences provided for in the Rental Housing Act.

Simply put, the Rental Housing Amendment Act proposes to make it an offence if any person fails to comply with sections 4(addressing unfair discrimination against tenants and prospective tenants) or 5(1) (addressing the formal requirements of a lease). This is a reference to the amended section 5(1).

The further amendments provide that it will be an offence if any person interferes with the rights of the tenant and landlord as set out in sections 4A and 4B, or fails to fulfil his or her obligations as landlord in terms of sections 4B(1)(c) and 4B(11). Sections 4A and 4B will spell out the rights and obligations of the tenant and the landlord, respectively. The tenant’s rights include, among other things, a right to privacy.

Interestingly, it does not appear that a failure by a tenant to fulfil an obligation in terms of section 4A will amount to an offence, as opposed to the landlord’s failure to fulfil its obligations in terms of Sections 4B(1)(c) and 4B(11). It is only the interference with a right of a tenant (and not a failure to fulfil a tenant’s obligation) that is seemingly an offence for purposes of the act once it is promulgated.

A failure by the landlord to fulfil his or her obligation to repay a deposit which must be repaid (subject to deductions for the reasonable costs of damage and a number of other allowable deductions) or to provide a tenant with a dwelling 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, is an offence.

The inclusion of the definition for habitability is new. Habitable refers to a dwelling that is safe and suitable for living and includes 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.

The act does not define “adequate space”, the type of protection or the lengths to which a landlord should go to ensure physical safety and this may be relative to each dwelling. We will have to see how the courts interpret this provision.

Additionally, the amended section 5(1) will provide that the landlord must reduce (write down) the lease entered into between landlord and tenant. Not only will it now be a formal requirement of all leases to be done in writing; the conclusion of an oral lease will seemingly be an offence in terms of the act once the amendments have been brought into effect.

About the author: Marlon Shevelew is the director of law firm Marlon Shevelew and Associates Inc. Shevelew is a well-known expert authority on residential property law in South Africa. He is contactable on marlon@marlonshevelew.co.za.

Related articles: Demystifying the proposed Rental Amendment Act
The impact of the proposed Rental Housing Amendment Act

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