Article by Umhlanga Durban Attorney - Fawzia Khan
On 4 October 2017, I was a guest speaker on a community radio station, answering questions on the rights of residential tenants. I share some of the points covered during the radio talk show. In South Africa, the rights of residential tenants are covered by a number of different legislation such as the Rental Housing Act, The Rental Housing Amendment Act, (which is yet to come into operation), the Consumer Protection Act as well as the common law.
All these laws seek to protect the rights of the tenant. Once a lease agreement has been concluded, the tenant has the right to occupy the leased premises undisturbed, the right to privacy and the right to be consulted on issues affecting the tenancy, such as any repairs or renovations to be made on the leased premises and so on. There is a misconception that if the landlord sells the property, then the tenant has to re-negotiate another lease with the new owner. This is not allowed in our law. The tenant’s does not lose his right to occupy the property when there’s been a change in ownership. The new owner simply steps into the shoes of the previous landlord and is required by law to honour all the terms of the old lease.
From the tenants side he is obliged to keep to his side of the agreement by paying the agreed rental timeously, keep the leased property in good condition and use the property only for the purpose for which it was let. When the lease ends the tenant must restore the property in the same condition as when he received it. In terms of the Rental Housing Act 1999, either the landlord and tenant can cancel the lease but must give at least one month notice to the other party. If the tenant is a natural person, (or falls under the threshold if it’s a juristic person), then the Consumer Protection Act allows the tenant to cancel the lease by giving 20 business days notice. With regard to the deposit, the landlord must invest any deposit in an interest-bearing/trust account, and when the lease ends he must refund the full deposit together with accrued interest. However the landlord is allowed to use the deposit to pay for any outstanding cost due to him and to cover the repair costs of any damage, excluding fair wear and tear, to the property whilst the tenant was in occupation.
The landlord and tenant should jointly hold a pre and post inspection of the premises, using the same list of defects to check against what the condition was when the tenant took occupation. Your landlord has the right to inspect the property, but has to give you notice in advance so that a suitable time can be arranged for the inspection. A landlord is not allowed to lock the tenant out of the property. A landlord is not allowed to discriminate against a tenant based on a person’s race, gender, marital status, sexual orientation, ethnicity, age, disability, religious beliefs, culture, language and so on. A landlord may not seize any of the tenant’s belongings unless he has obtained a court order. The Rental Housing Amendment Act, which is yet to become operational provides even greater rights and protection to the tenant.
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