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RENTAL RIGHTS DURING THE WATER CRISIS

RENTAL RIGHTS DURING THE WATER CRISIS

As a constitutional right, everyone should have access to clean water. Even during a water crisis. In cases where there is a signed agreement between a tenant and landlord pertaining to the supply of water, the obligations stated in the rental agreement should be met by the respective party. Should one of the parties fail to oblige, the agreement may be terminated. Parties to this contract should, however, understand the changes that come with crises.

Common law recognises any crises that could not have been halted or anticipated as “An Act of God”. These are the rights pertaining to rental agreements during a water crisis:

Ongoing water supply:

  • If the municipality reduces water supply, tenant may not cancel lease agreement or claim reduced rental.

Services supplied to tenant (swimming pool, sprinklers etc.):

  • Should day zero come and water supply is cut off, landlords may not continue charging tenants for these services if they are no longer available.

Reduced utility charges:

  • Tenants are within their rights to negotiate that their utilities amount be reduced to account for what the landlord would be paying on their behalf.

Municipal bills and fines:

  • The landlord must pay these to avoid water supply being cut off for the tenant. The landlord may claim that money back from the tenant.

Maintenance responsibilities (refilling the pool, watering gardens etc.):

  • Tenants are exempt from complying with these responsibilities if they contravene with water restrictions.

The water crisis, which has affected mostly the Western Cape, has seen the municipality put restrictions on water usage, cut water supply at certain times of the day, and increase the water rates. Most lease agreements make provision for the responsibility of water usage – the tenant could either be billed monthly, or the rental amount could be water inclusive. If the water bill is the tenant’s responsibility, then they will be liable for the increased water prices. If the rental amount is fixed, any fluctuation in the water bill will be absorbed by the landlord.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

UNLAWFULLY EVICTED? HERE’S A PIECE OF PIE

UNLAWFULLY EVICTED? HERE’S A PIECE OF PIE

Unless the sheriff of the court has evicted you, you should remain right where you are. If anyone else carries out an eviction, it constitutes as unlawful according to the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act.

Regarding the eviction process, the PIE Act stipulates this:

  • Certain procedures must be followed
  • Notice of the intention of getting a court order must be given to the tenant
  • The landowner or landlord must apply to the court to have a written notice served on the tenant
  • The notice must be served at least 14 days before the hearing

The Rental Housing Tribunal (RHT) works alongside the Rental Housing Act, fostering the relationship between landlords and tenants to be one of fairness in terms of lease agreements and any unlawful evictions and unlawful notices to vacate. From the moment the lease agreement terms have been breached, for example, the tenant fails to make rent payments, the landlord may cancel the agreement and the tenant then becomes an illegal occupier.

The PIE Act states that no one may be without property except in terms of law of general application. Arbitrary deprivation of property from any person is unlawful. Additionally:

  • no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances;
  • it is desirable that the law should regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of land owners to apply to a court for an eviction order in appropriate circumstances;
  • special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and it should be recognised that the needs of those groups should be considered.

The notice does not guarantee that the unlawful tenant will leave the premises as the court can only grant eviction if it is just and equitable. The owner must also have reasonable grounds for eviction and alternative accommodation available to the tenant.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

GETTING RID OF NON-PAYING TENANTS: FIRST MAKE SURE THE PAPERWORK IS IN ORDER!

GETTING RID OF NON-PAYING TENANTS: FIRST MAKE SURE THE PAPERWORK IS IN ORDER!

Anyone who has ever been faced with having to evict tenants who are not paying their rent knows that it can be a long and frustrating (not to mention expensive!) process.

The process can prove to be even more frustrating if the steps leading up to and including cancellation of the lease agreement (which is a prerequisite to any eviction application being brought) have not been dealt with properly and in terms of the lease agreement and applicable legislation.

Below is an outline of the steps landlords should follow to ensure that, if the time comes to evict a non-paying tenant, the process is not unduly delayed as a result of incomplete paperwork.

STEP ONE:

Make sure your residential lease agreement complies with the applicable legislation

It is important to note that all residential lease agreements are governed by the Rental Housing Act 50 of 1999 (“the RHA”). The Act is very succinct and familiarising oneself with its contents is a must for landlords and tenants alike. Some fixed term residential lease agreements are also subject to section 14 of Consumer Protection Act 68 of 2008 (“the CPA”). In terms of section 14 of the CPA:

  • A landlord may cancel the agreement 20 business days after giving written notice to the tenant of a material failure by the tenant to comply with the lease agreement (e.g. failure to pay rental amounts when due), unless the tenant has rectified the failure within that time. In other words: Should your tenant be in breach of the lease (which lease is for a fixed term and provided the CPA applies), you may only cancel the lease after having given the tenant 20 business days written notice of such breach and the tenant having failed to rectify the breach within such period.

What is therefore implied is that (provided the CPA applies to the lease agreement) all clauses in lease agreements which provide for immediate cancellation of the lease in the event of the tenant failing to pay the rental amount on the due date, or provide for a period of less than 20 business days within which to remedy the breach, are unenforceable.

Landlords should therefore ensure that their residential lease agreements are drawn up by an attorney specialising therein and that once the lease agreement has been properly signed and dated by all parties, to keep it in a safe place for future use.

STEP TWO:

Act timeously when a breach occurs

Should your tenant breach a material term of the lease agreement, for example fail to pay the rental amount when due, it is important to act swiftly and in terms of the provisions of the lease agreement.

For example: Should the rental amount be payable on the first of the month and you are not supplied with a proof of payment by your tenant, or the funds do not reflect in your account by said date, it is important to immediately notify the tenant in writing of his or her breach (“the breach notice”) and request that the breach be remedied within the time period as provided for in the lease agreement. Keep in mind that, should section 14 of the CPA apply to the lease, the tenant must be given at least 20 business days written notice within which to remedy the breach, regardless of what the lease agreement provides for.

Landlords should also ensure that this breach notice is delivered to the tenant using the method provided for in the lease agreement. Whether the lease agreement provides for delivery of notices by hand, registered post, fax and/or email, ensure that this is done properly and that the correct details are used as provided by the tenant. Keep proper record of delivery of such notices.

STEP THREE:

Cancel the lease when the tenant fails to remedy their breach

Should your tenant fail to remedy his or her breach by making payment of the arrear rental amount within the time period provided for in the breach notice (as outlined in step two above), you as landlord are entitled to cancel the lease agreement.

It is advisable to deliver a notice of cancellation of the lease agreement to the tenant, informing him or her of the cancellation and providing a date by which the property must be vacated, failing which a formal eviction application will be brought. Ensure that this cancellation notice is also properly delivered to the tenant as provided for in step two above and keep proper record of delivery thereof.

STEP FOUR:

Bring an eviction application should the tenants fail to vacate the property

In some instances, tenants will disregard the landlord’s notice of cancellation and/or request to vacate and remain in occupation of the property.

As the Constitution of the Republic of South Africa provides that no one may be evicted from their home without an order of court, made after considering all the relevant circumstances, the only recourse a landlord has in such an instance is to approach the courts for assistance by way of an application for eviction of the former tenants, now “unlawful occupiers” as defined in the Prevention Of Illegal Eviction From And Unlawful Occupation Of Land Act 19 Of 1998 (“PIE”).

PIE regulates the eviction of “unlawful occupiers” from land which is used for residential purposes and the provisions thereof must therefore be followed whenever an order for the eviction of persons from a property used as a dwelling is sought.

What should be clear, is that before such eviction proceedings can be brought, the person(s) against whom the eviction order is being sought must first be rendered “unlawful occupiers”. An “unlawful occupier” within the ambit of PIE means “a person who occupies land without the express or tacit consent of the owner or person in charge.”

Before a tenant can be rendered an “unlawful occupier” and therefore before any eviction application can be brought in terms of PIE, the consent of the owner must be withdrawn, in other words, the lease agreement, in terms of which the tenant is granted occupation of the property, must be validly cancelled.

It is therefore of utmost importance that the lease agreement is cancelled timeously and in terms of the lease agreement and applicable legislation. Upon instructing an attorney to act on your behalf in any eviction application, he or she will first and foremost have to determine whether the above was in fact done. Should it transpire that, for example, your breach notice was defective, or not properly delivered, it will be necessary to re-do these steps, thereby losing valuable time and incurring unnecessary costs.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

RENTAL DEPOSITS RECLAIMED

RENTAL DEPOSITS RECLAIMED

What to know when your landlord has your deposit and has failed to pay it out

You have viewed the new property and secured it by paying the correct deposit amount to the landlord. With the transition into your new space being as breezy as it was, no red flags were raised as to how your landlord could trick you going forward. How do you approach a situation where your landlord won’t pay you back your deposit after you move out?

Firstly, a pre- and post-occupation inspection of the rental space must be completed before and after the tenant moves in. This inspection is the landlord’s responsibility and if he or she does not conduct the said inspection, they are then unable to claim against the tenant upon the lease expiration. The Rental Housing Act states that the tenant has the right not to have their home or property searched by the landlord, and thus, the landlord must give reasonable notice for inspection 3 days before the lease ends.

Regarding deposits, section 5 of the RHA states that, should there be damages incurred by the tenant under the said lease needing repair after the post-occupation inspection, the landlord must refund the remaining deposit amount, if any, to the tenant within 14 days. In the case where no claims for damages have been made by the landlord, and the tenant is debt free in terms of charges and rent, the deposit must be refunded within seven days following the lease expiration. A tenant who refuses to take part in the inspection process, and damages have been found, is liable to receive their remaining deposit 21 days from the expiration of the lease.

If a landlord refuses or has failed to refund the tenant their deposit, the tenant may approach the Rental Housing Tribunal.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference

Rental Housing Act No. 50 of 1999. (2017). [PDF] Cape Town: Republic of South Africa, pp.6-7. Available at: https://www.gov.za/sites/www.gov.za/files/a50-99.pdf [Accessed 20 Nov. 2017].