Landlords are not allowed to resort to creative ways to get rid of their tenants - by doing so, they only create ammunition for the tenants to delay the eviction process, which costs more time and money. Picture: African News Agency (ANA)

Many people opt to rent before they purchase - if they ever do. In a competitive rental market, where landlords are not able to command the same steep rentals (even in the overinflated Cape Town market) as they were a few years ago, and a tough economic environment, where tenants are under increasing financial pressure, it’s imperative that each party in a lease agreement understands their rights and obligations.

But it’s often a case of pot luck with tenants, landlords and/or their agents, which is why the residential letting market is fraught with widespread complaints, uncertainty and abuse.

Now, a new book explores the rights and duties of tenants and landlords. And it’s essential reading for anyone involved in this sector, including legal practitioners.

Dr Sayed-Iqbal Mohamed’s Landlord & Tenant - Rights & Obligations is a new release by LexisNexis. It’s an expanded version of the previous Tenant and Landlord in South Africa.

The book includes discussion on the Rental Housing Act (RHA) of 1999, which governs tenancy, and looks at the work of the Rental Housing Tribunal and its role in expediting and resolving complaints of unfair practice.

Mohamed, described in the foreword by Judge President AN Jappie as a “champion of the rights of the poor and vulnerable, in particular those who must resort to the Constitution of the Republic of South Africa, 1996 to enforce their rights to have a roof over their heads”.

“While this book acknowledges the fundamental right to housing guaranteed by the Constitution, it draws attention to both the obligations that tenants and landlords owe each other. The book will not only assist both parties to manage their relationship but will provide guidance regarding steps to be taken if and when that relationship breaks or terminates.”

Mohamed is the deputy chairman of the KwaZulu-Natal Rental Housing Tribunal and the founder of the Organisation of Civic Rights (OCR).

Informed by over 35 years of experience with the OCR, where he witnessed the hardship of abused tenants at the hands of unscrupulous landlords, who disconnected water and electricity supplies, illegal lockouts of families, neglecting necessary repairs, charging high rentals and not refunding security deposits, Mohamed notes that tenant rights do not exist by themselves.

With rights come responsibilities

“Tenants need to be educated about their duties, responsibilities and obligations - things they need to do in respect of the corresponding rights of landlords. This prevents landlords from taking legal action and also reminds tenants that they are obliged to respect and look after the property they occupy,” Mohamed writes.

This includes not violating the rights of landlords, not damaging property, behave abusively and breaching their agreement.

Chapters 1 and 2 deal with the development of the Rental Housing Act and the establishment of the tribunal, while Chapter 3 looks at the rights and duties of the landlord and tenant. This includes the importance of joint inspections, deposits, leases, and breaches of contract.

Issues such as whether deposits can be used as rental; when should rental be paid; the landlord’s remedy when payment is late; lockouts; seizing tenants’ property via a lien or tacit hypothec; rental remission (where a tenant can have the rental reduced in proportion to the reduced use and enjoyment of the property); trespassing and repairs (including repair-and-deduct, which is a handy self-help tool that allows tenants to effect emergency repairs, or if the landlord fails to carry out necessary repairs) are discussed at length.

Chapter 4 deals with procedural and practical details, 5 gives examples of Tribunal rulings, while the appendices deal with the RHA, unfair practices, specimen lease agreements and sample letters.

Useful remedies

Spoliation: Spoliation orders are one of the most effective ways of restoring possession of leased property or to have services such as water and electricity restored. Mohamed outlines the process to be followed, saying the merits of the dispute are irrelevant in spoliation: “Cameron JA summarises the basis for a spoliation when he said that ‘anyone illicitly deprived of property is entitled to be restored to possession before anything else is debated or decided The principle is that illicit deprivation must be remedied before the courts will decide competing claims to the object or property’.”

Eviction and changing locks: Tenants may not be evicted without an order of court. “A tenant evicted from the whole part of a dwelling by a third person has, subject to the common law, a claim against the landlord.” A landlord may also not change locks or doors providing access to the dwelling - without it is necessary due to fair wear and tear; without reasonable notice; and unless duplicate keys are provided.

Maintenance clauses: Landlords have a legal duty to keep every part of the external dwelling clean and free of rodents, dirt, garbage or other offensive material, Mohamed notes. Tenants, however, can undertake to maintain the premises and relieve the landlord of that common-law duty but if there’s a maintenance clause within the lease, the landlord or agent must bring that to the tenant’s attention before signing the lease.

Help for landlords: Evicting tenants is already onerous on landlords, and the book doesn’t offer much assistance here besides exploring the perfection/finalisation of a tacit hypothec via the court, but does advise that they are able to do so by approaching a court - not the tribunal. Clauses in leases allowing for illegal evictions are illegal and unenforceable.

* Landlord & Tenant - Rights & Obligations costs R310 (excluding VAT and delivery), or online format for R279. To purchase, visit the LexisNexis online bookstore.

** Georgina Crouth is a consumer watchdog with serious bite. Write to her at [email protected], tweet her @georginacrouth and follow her on Facebook.