Changes to the Rental Housing Act have been tabled in parliament by Minister of Human Settlements Connie September. It is one of the priority bills that must be passed into law before the May 2014 elections. It deals with several proposed changes, notably that all leases must be in writing, and addresses some of the much criticised deficiencies of the Rental Tribunals.
The Rental Housing Act is the foundation for the maintenance of good relations between owners and tenants, and the enforcements of their respective rights.
As the law currently stands, an oral or tacit agreement between a landlord and a tenant is valid and enforceable. The law does provide that the tenant must be provided with a written agreement if it is required. Oral and tacit agreements are often problematic as they require oral evidence if disputes end up in court, resulting in long waiting periods for court dates and increased legal fees, not to mention the wide margin for disagreement in the respective interpretation of such agreements. A related problem with the current dispensation is that often the written agreement lapses or is amended, but the renewals and/or changes are not recorded and the written agreement brought up to date, resulting in the same risks.
When the new law comes into effect, it places an explicit obligation on the landlord to produce a written agreement. Furthermore only written agreements will be recognized and be enforced by a tribunal or court – oral agreements will not be recognised. The minister will also be required to publish a proforma lease agreement in all official languages that will make it easier for parties to adapt it to their particular requirements while ensuring that the requirements of the Act are complied with.
Dr Sayed Iqbal Mohamed, Chairman of the Organisation of Civic Rights, whose publications at www.ocr.za served as a source to this article makes a further recommendation:
- It would be prudent to include a mandatory clause that any change or alteration verbally made to the lease must be reduced to writing (non-variation clause) for such change or alteration to be valid.
- In the event of a dispute, neither tenants nor the landlords can claim that he or she had agreed to certain changes verbally. In other words, this clause states that any variation to the lease agreement would be of no effect unless reduced to writing.
- ‘The rule is that when a contract has once been reduced to writing, no evidence may be given of its terms except the document itself, nor may the contents of such document be contradicted, altered, added or varied by oral evidence.’
The Bill will also set out to enhance the effectiveness of the Rental Housing Tribunals by
- Extending on their powers to further balance the rights, duties and obligations of tenants and landlords, specifically by granting powers of spoilation, interdicts and attachment. It must be noted that eviction orders were specifically excluded due to the s26 provision of the Constitution.
- By imposing a duty on MEC to establish the required tribunals
- Introducing an appeals process and the provision for a tribunal to withdraw or change their rulings.
Finally the Bill will set out the respective duties of landlords and tenants more clearly, address loopholes identified and generally address problems identified in the rental sector during the public participation process. It will expand on the definition of “unfair practices, which will be accompanied by Unfair Practices Regulations to be published shortly for public comment.
The realm of laws relating to residential rental property is a complex and evolving landscape, and any developments to offer improved and faster relief to aggrieved landlords and tenants are very welcome.