During these past few days, it came to Preferental’s attention that the majority of landlords are not aware of what the Rental Housing Act (1999) profoundly stipulates. As an agency, we would not only like to give attention to the management of properties, but we would also like to shed some light on educating our landlords on what the Law requires when it comes to their rental property and tenants.

The Rental Housing Act (1999) is a set of laws drawn up by the Government which aims to facilitate landlords (and agencies) when drawing up a lease agreement. Whenever disputes arise, one should always go back to the Rental Housing Act as guidance of how to solve any rental problems. Every agency, landlord and tenant are subject to the Law, and any offence is punishable with fines or even jail time.

What does the Rental Housing Act actually say when it comes to the relationship between a landlord and his tenant?

Relations between landlords and tenants

General provisions:

  1. When advertising a property, or during the lease period, the landlord may not unfairly discriminate against the tenant, and members of the tenant, on grounds of race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.
  2. The tenant has the right to privacy during the lease period. The landlord and tenant must arrange a date and time of when the landlord may inspect the property and do repairs.
  3. The tenant has the right to be respected in the following ways, and not to have: i) his or her person or home searched; ii) his or her property searched; iii) his or her possessions seized, except in the case of a Court order; iv) the privacy of his or her communications infringed.
  4. The rights set out in (3) apply to both the tenant and members of the tenant.
  5. The landlord has the right to i) receive rental payment from his tenant every month as compensation for the tenant’s occupation of the rental property, as well as any other charges as stipulated in the lease agreement; ii) recover any unpaid rent or amount after obtaining a ruling from the Court; iii) terminate the lease if either of the parties is in breach of the lease agreement; iv) after termination, receive the rental property in a good state of repair, save for fair wear and tear; and repossess the rental property after receiving an order form the Court; v) claim compensation for any repairs due to damages done by the tenant or members of the tenant.

The Provision regarding the lease agreement

General provisions:

  1. Currently, a lease agreement between a landlord and tenant doesn’t have to be in writing. This clause will change soon as it will be compulsory for lease agreements between landlords and tenants to be in writing and legally enforceable.
  2. The landlord should provide receipts to the tenant of all payments done by the tenant.
  3. Such receipt must be dated and indicate the address, including the street number and further description, if necessary, of the property, and whether payment has been made for rental, arrears, deposit or otherwise, and specify the period for which the payment is made.
  4. The landlord may require the tenant to pay a reasonable deposit before moving into the property.
  5. The landlord is obligated to invest the tenant’s deposit in an interest-bearing account. The deposit and interest earnings should be paid back to the tenant after the lease agreement has ended, and the landlord didn’t have any damage claims.
  6. The landlord and tenant should inspect the property before the tenant takes occupation.
  7. At the end of the lease agreement, the landlord and tenant should inspect the rental property within three days after termination, to determine any breakages and damage claims.
  8. The landlord may use the tenant’s deposit to repair any damages in the rental property for which the tenant is liable. After that, the landlord must pay the balance of the deposit and interest, if any, back to the tenant within 14 days.
  9. The landlord must provide the relevant receipts for the repairs that had to be done.
  10. Should no amounts be due and owing to the landlord in terms of the lease, the deposit, together with the accrued interest in respect thereof must be refunded by the landlord to the tenant, without any deduction or set-off within seven days of the expiration of the lease.
  11. Failure by the landlord to inspect the rental property in the presence of the tenant, can be seen as the landlord acknowledge that the rental property is in a good and proper state of repair, and the landlord will have no further claim against the tenant who must then be refunded the full deposit plus interest by the landlord.
  12. Should the tenant fail to respond to the landlord’s request for an inspection, the landlord must on the expiration of the lease inspect the rental property within seven days from such termination to assess any damages or loss which occurred during the tenancy. If the landlord uses the deposit for repairs, then the balance of the deposit and interest should be paid back to the tenant within 21 days, together with a receipt of all the costs.
  13. If the tenant absconds before the end date of the lease agreement, then the landlord may act upon his rights as stipulated in the Rental Housing Act.
  14. Any landlord or tenant may not wave the previsions in the Rental Housing Act.
  15. If the lease agreement has expired and the tenant still occupies the rental property, then a periodic lease will start on the same terms and conditions as the expired lease. One month’s written notice must be given of the intention by either the landlord or tenant to terminate the contract.

A lease agreement should include the following:

  1. The names of the tenant and the landlord and their addresses in the Republic for purposes of formal communication.
  2. The description of the rental property which is the subject of the lease.
  3. The amount of rental of the rental property and reasonable escalation, if any, to be paid in terms of the lease.
  4. If rentals are not paid every month, then the frequency of rental payments.
  5. The amount of the deposit, if any.
  6. The lease period, or, if there is no lease period determined, the notice period requested for termination of the lease.
  7. All the obligations of the tenant and the landlord, which must be in line with the regulations of the Rental Housing Act.
  8. The rental amount, and any other charges payable in addition to the rental amount in respect of the rental property.
  9. A list of defects registered after inspection must be attached as an annexure to the lease.
  10. A copy of any House Rules applicable to a rental property must be attached as an annexure to the lease.
  11. A landlord must ensure that the provisions of the Rental Housing Act are complied with.

The Rental Housing Act also provides the working and responsibilities of the Government and the Rental Housing Tribunal. The landlord and tenant may ask the Tribunal for assistance if the landlord and tenant cannot solve a dispute on the grounds of the lease agreement or laws as stipulated in the Rental Housing Act.

Since 2014 there have been a few amended laws that will be implemented soon. These amendments aim to clarify all the laws that had led to disputes between landlords and tenants previously.

The main changes that landlords and tenants should be aware of are the following:

  • Lease agreements between landlords and tenants must be in writing and legally enforceable;
  • The tenant should understand all sections of the lease agreement and any explanations and definitions before the document is signed;
  • The landlord should ensure that the rental property is in a habitable state at all times, which is in line with the existing Rental Housing Act;
  • The landlord should maintain the rental property and ensure that it has access to essential services, such as water and electricity;
  • The landlord is not permitted to cut off services of non-paying tenants — only the local authority has permission to do so;
  • Neither the landlord nor fellow tenants may prevent a tenant from entering the rental property without a court order;
  • Both the landlord and tenant should participate in an incoming inspection on the commencement of the lease period. If the landlord fails to participate in this inspection, no part of the tenant’s deposit may be used for repairs or damages at the end of the lease agreement;
  • A list of all the defects in the property has to form part of the lease agreement as an annexure;
  • The deposit and the interest earned on that deposit should be paid back to the tenant within seven days at the end of the lease period, subject to any deductions for damages.

Landlords and property agencies that fail to comply with these new laws after the first six months of implementation could be liable to pay a fine or even get a jail sentence for non-compliance. The implementation date isn’t confirmed yet, but this gives all landlords and tenants the chance to get everything sorted before then.