The Rental Housing Act 50 of 1999 (the RHA) only applies to the leasing of residential property in South Africa. Virtually all residential property is now included in its ambit. The principal act commenced on 1 August 2000 and various amendments followed. The purpose of the RHA is to govern the relationship between tenants and landlords and to regulate the leasing of residential property in South Africa. The 2007 Amendment Act created a body called the Rental Housing Tribunal (with one in some provinces like the Western Cape, Gauteng, Kwa-Zulu Natal) to settle disputes between the parties to residential lease agreements.
The latest amendment to the Rental Housing Act
The newest amendment act is the Rental Housing Amendment Act 35 of 2014. This Amendment Act was assented to by the President but the commencement date has not been announced. This means that its provisions are not effective yet. It will introduce the following changes:
- lease agreements will have to be in writing,
- there are definitions that have been changed and inserted,
- the nature of the offences has been extended,
- various changes have been made surrounding the Rental Housing Tribunal, which includes extending their powers and requiring the MEC to establish Tribunals in all provinces.
What must be included in lease agreements?
Few people know that the Rental Housing Act requires certain information to be included in all written residential lease agreements. Most landlords are horrified to hear that if this information is not included in a written lease, they may be fined or imprisoned for up to two years. The Rental Housing Act has introduced various offences for landlords, so they have to tread lightly when renting out residential property.
The details that must be included in a residential lease agreement include:
- the names and addresses of the landlords and tenants,
- a description of the property being rented,
- details about the rental that is being charged and the how often payments will be made,
- the lease period must be specified and any termination notice periods, and
- the obligations of both the tenant and the landlord must be specified in the agreement. (Obligations of the parties cannot be against the provisions of the Act and should not equate to an unfair practice in terms of the regulations.)
The Rental Housing Act requires all this information to be included in your residential lease agreement. The 2014 Amendment Act requires all leases to be in writing.
The Act has deemed terms that are automatically included in any residential lease agreement and enforceable in any competent court. These terms may not be waived by the landlord or tenant, which means that neither the landlord not the tenant can agree that these terms will not be included. You need to know what these terms are. They are part of the lease agreement whether you like it or not.
Even if the deemed provisions are not included explicitly in the lease agreement, the terms will still apply to the relationship. For example, the Act requires a deposit to be made into an interest-bearing account for the benefit of the tenant. Even if this is not included in the written agreement, the landlord must still pay the deposit into an interest-bearing account.
Your lease agreement cannot contain terms that detract from the deemed terms of the Act. The landlord and the tenant can’t contract out of the deemed provisions. In addition to that, the parties cannot agree to terms that will constitute an unfair practice in terms of the regulations of the Act. A tenant and a landlord cannot agree that the interest on the deposit will be for the benefit of the landlord.