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The Rental Housing Amendment Act - waiting for a light in the dark?

The relationship between a landlord and tenant can be difficult at the best of times. For this reason, many of us are on the edge of our seats waiting for the Rental Housing Amendment Act (RHAA) to finally come into force. 

Once enforced, the Act gazetted in 2013 aims to regulate the often tenuous relationship between tenants and landlords with more efficiency. Michelle Dickens, MD of TPN Credit Bureau clarifies what this means in practical terms, “The amendments in the RHAA ensure that both the tenant and the landlord, or the agent acting on the landlord’s behalf, are fully accountable. In effect, this means that the relationship will be more properly regulated and fully documented.” 

When it comes to the actual lease agreement, Michelle explains that “it will now be the landlord’s responsibility to ensure that a lease agreement is in writing. Previously, verbal lease agreements were considered binding but this will not be the case going forward.”

The rights and duties of both the landlord and the tenant must now be set out in detail in the format prescribed in the RHAA, in writing. Rental and all other amounts payable must be itemised in the agreement and the tenant will not be liable for any charge that has not been specified. At any time, the tenant may also demand proof in the form of receipts or invoices of charges levied by either the landlord or an agent acting on the landlord’s behalf.

One of the further ways in which the relationship will be more closely regulated is through the definition of “unfair practice.” An unfair practice is defined as an act or omission by a landlord or tenant in contravention of the RHAA and a practice that unreasonably prejudices the rights of a tenant or landlord. 

The effect of this is that both the tenant and the landlord must act reasonably at all times when dealing with one another and both the tenant and the landlord can be guilty of an unfair practice which upon the enforcement of the RHAA, becomes a criminal offence.

For example, if the landlord cuts off the electricity supply or changes the locks, this constitutes an unfair practice. An example of a tenant who engages in unfair practice is the failure to grant reasonable access to the property to the landlord or agent. 

Lock-outs have always been illegal but the RHAA now includes a definition of “arbitrary eviction.” An arbitrary eviction is more than just a lock-out; it involves making a tenant’s life so difficult that there is no choice but to vacate. An example would be removing the front door or preventing access by changing the gate remote code. 

On top of that, the definition of “maintenance” now makes it clear that it is exclusively the landlord’s obligation to ensure that the property is fit or suitable for the tenant to live in at all times. The landlord must therefore maintain the existing structure of the property and facilitate the provision of utilities to the property. In the past, the landlord could provide that the maintenance is the responsibility of the tenant by including it as a provision in the lease agreement. But in terms of the RHAA, a landlord can no longer maintain the property via proxy. 

If an issue arises regarding the structural elements of the property, the landlord is required to determine whether the tenant intentionally or negligently caused the damage. For example, was a door destroyed in a moment of anger? If so, it would indicate that there was an intention to do harm. Negligence would involve doing something without taking proper precautions such as not securing a window which slams shut in a storm and shatters as a result. If the tenant has not intentionally or negligently damaged the property, the structural repairs are automatically for the account of the landlord.
 
In an unexpected move by Legislature, the RHAA has gone so far as to touch on the issue of deceased and insolvent estates. The deposit paid by a tenant, together with any interest accrued thereon, shall not form part of the assets of the insolvent or deceased estate of the landlord.

Finally, the RHAA vastly extends the ambit of the Rental Housing Tribunal (RHT). In the past, where a dispute was decided by the RHT although the ruling was equivalent to an Order of the Magistrates Court there was no allowance for an appeal or review process. 

Michelle clarifies this distinction for us, “the RHAA now allows for any person who feels aggrieved by a decision to file an appeal within 21 days of receipt of the decision. Further to that, aggrieved parties also have the ability to demand a review of the procedural aspects of their hearing ensuring that the jurisdiction of the RHT is now fully aligned with that of the Magistrates Court. The difference between an appeal and a review process is that a review only deals with the procedural aspects of a case whereas an appeal deals with the facts of the case.”

Once in force, the RHAA brings far more clarity to the practical aspects of the relationship between tenants and landlords. This in turn will assist anyone involved in the property industry to more expediently deal with matters that have, up until now, been the cause of confusion and led to disputes between the parties. For landlords and tenants who have experienced the reality of such difficulties, the RHAA most certainly seems to shine a much needed light on what was previously a rather ambiguous landscape.

About TPN:

TPN was started in 2000 as a Tenant Profile Network and is now a registered Credit Bureau. The company developed the only trusted rental payment profile database of its kind in South Africa. The TPN database combines information from TPN and other highly valuable sources, such as Experian and TransUnion, to provide the most comprehensive behavioural profiles on tenants and prospective buyers in the property industry today. 

For more information please visit www.tpn.co.za, follow TPN on twitter @tpnadvice, or visit our Facebook page.  



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