Category

Lease Agreement

THE CONSUMER PROTECTION ACT AND RENTAL AGREEMENTS

By | Evictions, Lease Agreement, Rent

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Landlords and tenants – suppliers and consumers

 

Tenants and landlords … why does the relationship turn acrimonious? Usually it’s because each party thinks the other is abusing the tenancy agreement. “My landlord never gets round to doing repairs.” “My tenant never pays the rent on time.” And so on. Both tenant and landlord have rights protected by law; and they both have a duty to act responsibly in upholding the lease. These rights and responsibilities are set out in the Rental Housing Act (1999). But did you know that the Consumer Protection Act (CPA) also applies to lease agreements? The landlord is considered the supplier and the tenant is deemed to be the consumer.

 

Implications for landlords

 

So what does this mean for landlords? Section 14(2)(b) of the Act says that ‘despite any provision of the consumer agreement to the contrary – the supplier may cancel the agreement 20 business days after giving written notice to the consumer of a material failure by the consumer to comply with the agreement, unless the consumer has rectified the failure within that time.’ In effect, regardless of the terms of the lease surrounding the notice period, if a tenant is in breach of the rental agreement, the landlord has the right to cancel the contract. In other words, if the rent is not paid, or if other terms of the lease are contravened … for example the property is sublet without permission … the landlord can give the tenant 20 business days’ notice to quit.

 

Tenants are protected by the Act … up to a point

 

So far so good, but like all legislation it’s not quite that simple. Consumers, in this case tenants, also have the right to fair treatment under the law and this means that they are granted an opportunity to rectify the breach within the 20 business days they have been given. So as long as the tenant pays the outstanding rent or ceases to sublet the property (or whatever the infringement was) within the 20 days, the law considers the breach to have been rectified and the tenant’s right to occupy the property legally restored.

 

Persistent breaches

 

Both of these provisions are pretty straightforward. So let’s consider a situation that is not quite so clear. What happens if a tenant is regularly and consistently in breach of the lease agreement but repeatedly rectifies the breach on, say, the 19th day of the 20-day period? Perhaps the rent is always paid just in time to avoid eviction, or the lease is infringed in myriad different ways each month but always put right at the last minute? What are the landlord’s rights in these circumstances?

 

On this point the CPA is not specific, and has not yet been tested in case law. But at Simon Dippenaar & Associates we believe that a cycle of persistent and repeat violations which are then rectified does not constitute rectification at all. It is provocative behaviour, either deliberate or otherwise, and evidence of an unwillingness to comply in a reasonable manner with the lease agreement. In this situation landlords may be within their rights to give refractory tenants their marching orders.

 

Unsure where you stand? Help is at hand

 

Every situation is different and it is impossible to give a hard and fast rule of thumb for cases like these. Housing legislation is complex. If you are unsure of how the Consumer Protection Act applies to you, either as tenant or landlord, contact Simon at sdippenaar@sdlaw.co.za to discuss your specific circumstances.

Is your landlord failing to maintain the property?

By | Lease Agreement

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There are very strict rules regulating who exactly is responsible for maintenance and upkeep of a rented property.
 
According to the Rental Housing Act, 1999, the landlord must provide the following for tenants:

  1. A property that is fit for living in.
  2. Proper maintenance to ensure that the home complies with all health, safety and local law regulations.
  3. Timeous repairs – the Act states that repairs must be done within 30 days of the landlord being notified of the problem. This can take longer if the landlord talks to the tenant and an agreement is reached.
  4. Decreased rent during the renovation period if it causes a major inconvenience to the people living there.

 
What should you do if your landlord won’t maintain the property?

  • Check your lease agreement – It’s vital that you know all of the details relating to maintenance, renovations and general upkeep of the property. These should all be stipulated in detail in your lease agreement. If you are unsure of any elements, ask a lawyer to have a look at the agreement to confirm who is responsible for the maintenance item.
  • Keep a record of the results of any inspections done – Your landlord or the letting agent will likely do an inspection of the property before you move in. This is to make a note of the general state of the home, as well as looking at fittings and fixtures that have been installed. The landlord is also within their rights to do inspections on a yearly basis in order to keep note of how things are being used or looked after. Be sure to ask for a record of these inspections so that you are aware of the state of the property according to your landlord.
  • Don’t do any renovations or alterations without consent from the landlord – You may feel that it would just be easier if you do the maintenance work or call in someone to do it for you, rather than wait for your landlord to organise things. However, unless you have the express permission from the landlord to do this, it’s possible that you won’t be reimbursed for the work. Worst case scenario, you could end up being sued by your landlord for making alterations to the property as this usually goes against what is said in your lease agreement.
  • Talk to a lawyer about mediation – The landlord is always responsible for maintenance or upkeep on what is considered “fair wear and tear”. However, sometimes this can be a contentious issue, especially when it comes to elements like damp or plumbing problems. If your landlord is saying that the maintenance is your responsibility, but you believe it isn’t, then it’s time to get a mediator in to sort out the issue.

Talk to Simon today about how to get your landlord to look after the property properly.