*Article updated 15 September 2023
The relationship between property owner and occupier should be a happy one. After all, it offers a reciprocal and mutual benefit. One earns a passive income from an owned asset, and the other enjoys a home to live in, without the weight of responsibility that come with property ownership. Unfortunately, the relationship is not always friendly. Friction can emerge as a result of unpleasant behaviour by either party.
Landlords can be unresponsive or unreasonable. Tenants can be disrespectful or negligent. South African law contains multiple pieces of legislation governing rental housing, and both landlords and tenants are accorded rights that protect them. They are also assigned responsibilities they must uphold. But the balance tends to lean towards tenants’ rights and landlords’ responsibilities. In this article we examine them both.
READ: Landlords: A guide to finding the ideal rental candidates
Understanding tenant’s rights
The South African Constitution gives people certain inalienable rights. How do they apply to tenants?
Right to fair treatment in law
A landlord cannot evict a tenant without going through the correct legal procedures. Unfortunately, some landlords take it upon themselves to involve municipal law enforcement to evict tenants. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE) is a key piece of legislation in South Africa that regulates the process of eviction. It was enacted to protect both property owners and tenants, ensuring that evictions are carried out in a fair and lawful manner.
The courts take eviction law very seriously. Failure to follow the correct process could result in a heavy fine for the landlord, as well as damages payable to the tenant. In the worst case scenario, the landlord could end up in jail, facing serious criminal charges.
Right to adequate housing
The Constitution recognises the right to adequate housing as a basic human right. No one’s property may be taken away from them and no one may be evicted from their home without a court order. This means a landlord must apply to court before evicting a tenant from their property.
The court must be satisfied that there is alternative accommodation available to the tenant before ordering the eviction. This can be state housing, as the state has a duty to provide housing to all its citizens. If the tenant has occupied the property for over six months, PIE does not allow the tenant to be evicted without having first secured alternative accommodation.
Right to legal representation
The law gives a tenant the right to defend against an illegal eviction if a landlord forces them to leave the premises without appropriate notice. Ownership does not give a landlord the right to evict a tenant without following the correct procedure.;
Tenants have the right to legal representation during the eviction process. If a tenant cannot afford a lawyer, they can seek assistance from Legal Aid South Africa or a pro bono attorney. Further information regarding Legal Aid is available online or from the Registrar of the High Court.
Understanding landlord responsibilities
Landlords have a set of responsibilities towards their tenants. Legislation is motivated in part by past abuses and rental housing law ensures tenants cannot be exploited or unfairly treated.
READ: Landlords vs tenants: Who pays for repairs?
General obligations
The landlord has the responsibility to:
Deliver the property to the tenant for their use and enjoyment. The landlord must provide everything necessary for the tenant to use and enjoy the property, for example, keys, remotes, etc;
Maintain the property in good order and condition for the duration of the lease agreement. Correspondingly, the tenant should report any defects in the property to the landlord;
Ensure the tenant’s undisturbed use and enjoyment of the property, i.e., the tenant’s privacy.
Following legal procedures:
The PIE Act clearly defines the procedure the landlord must follow to evict a tenant. A property owner must not take the law into their own hands, for example by cutting the electricity or water supply to the property or intimidating the unlawful occupier into vacating the property. A landlord can only consider eviction in the event of a breach of the lease agreement which the tenant has failed to rectify. If the lease is coming to its natural end and the landlord does not wish to renew it, they simply give the tenant notice to quit per the terms of the lease agreement. This is not eviction.
READ: A Guide | What you need to know about managing evictions
However, if the tenant breaches the agreement, the steps in the eviction procedure are:
Notify the tenant of the breach:
The landlord must issue a warning to the tenant in writing, giving them a specified amount of time to remedy the breach. This time frame is determined by the terms of the lease. Unless otherwise specified, it is 20 working days, in accordance with the Consumer Protection Act (CPA). The CPA is designed to protect consumers in various transactions, including rental agreements. It sets out specific requirements for notice periods and other aspects of the landlord–tenant relationship. If there is no written lease, the landlord must give a full calendar month’s notice. If the tenant rectifies the breach, the matter is finished.;
If the breach is not remedied within the designated time, the landlord notifies the occupier in writing that the lease is to be cancelled and gives the occupier reasonable time to vacate the property;
The notice period required to cancel the lease, like the time allowed to remedy the breach, is dictated by the lease. If no time frame is stipulated, or in the case of a verbal lease, a minimum of one calendar month’s notice is required (end of the current month to the end of the following month).
Apply for a court order:
If the occupier fails or refuses to vacate the property, despite being given adequate notice, the landlord may approach the court to start the eviction procedure;
The court provides the landlord with a date and time for the eviction hearing.
Serve notice on the tenant:
Written notice of the eviction hearing must be personally served on the unlawful occupier of the property, as well as on the local municipality;
This notice must be served by the sheriff at least 14 business days before the eviction hearing in court;
The notice must indicate the date and time of the eviction hearing, the circumstances surrounding the eviction, and the unlawful occupier’s right defend themselves.
The hearing:
At the eviction hearing the court will hear the matter and make a decision whether or not to grant the eviction order. The occupier may defend the eviction. The court will consider factors such as children, elderly or disabled tenants, and woman-headed households, and the availability of suitable alternative accommodation when granting the eviction order. In certain circumstances an order may be granted but “stayed” – delayed – to give the occupier more time to find another home.
Respecting tenant’s rights
Landlords must respect the rights of tenants during the eviction process. Harassment or intimidation of tenants is not permitted.;
The landlord is not allowed to enter the tenant’s premises or remove doors to speed up the eviction process. The provisions of the Rental Housing Act are clear on the rights of tenants. The tenant’s rights include the right not to have:
Their person or home searched;
Their property searched;
Their possessions seized, except by court order
Balancing rights and responsibilities
Evictions are complex processes that require a careful balance between the rights of tenants and the responsibilities of landlords. It is also important to be mindful of ethical considerations, as South Africa has an acute housing shortage at present and a fragile economy. It is always better to try to resolve disputes through negotiation and, if necessary, mediation. Seeking an eviction order through the courts should be the last resort.
For further information or advice on the legal or ethical aspects of an eviction matter, whether you are landlord or tenant click here.
READ: Rental disputes? | How to resolve them without incurring legal costs
Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa, featured in an article published in January 2023 where he shared some of the most important steps to follow when disagreements arise:
Understand your rights
One of the best ways to resolve a rental conflict is to understand the rights of either party in terms of South African law. For example, a tenant has the right not to have their person, property or residence searched without consent or prior agreement. They also have the right not to have their possessions seized without a court order and the right to privacy of communication.
On the other hand, landlords have the right to receive a prompt and regular rental payment, as well as the right to recover a debt after a court order is issued. They also have the right to terminate a lease agreement if any of the terms agreed upon are not honoured by the tenant and to claim compensation for any damages or improvements. Landlords also retain the right to receive their property back in a good state.
Utilize the Rental Housing Tribunal
When facing a deadlock, landlords and tenants can always seek counsel from the Rental Housing Tribunal (RHT). This can be more favourable than going through the costly process of taking a matter to court. In South Africa, the RHT can proceed to investigate your situation and assist you in resolving the dispute. This also means that your conflict is heard for free and you don’t require a lawyer (but you may have one present if you’d prefer).
Rental disputes are seldom easy to deal with and can be a drain on one’s time. That’s why, Goslett recommends partnering with a real estate professional to help manage the rental property on the owners’ behalf. “One of the best ways to maintain healthy rental agreements and to avoid disputes from occurring is to work with a RE/MAX rental agent who can act as the mediator between landlords and tenants and offer advice and support to both parties,” says Goslett.
Additional information: Just Property shares five tips that will help you rate as a top tenant (read the article here)
Lift That Credit Score
Landlords are not only concerned about your income. They want to see how you’ve managed financial commitments in the past, as this is a leading indicator of your ability to pay your rent on time and in full. A good credit score will put them at ease but if your credit score is not good, you may need at least six months to improve it. A credit score is calculated by the credit bureaus and looks at five parts.
- payment history (if you consistently pay on time and in full, the better your score),
- debt use (how much of the total credit available to you that you use),
- credit history length (the longer your credit history, the better your score),
- recent activity (you will score points here if you refrain from applying for more credit on a regular basis) and
- your credit mix (you’ll score more points here if you own more types of credit e.g., you have a credit card, a cell phone account, and a store account)
* Disclaimer: The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.
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