The Rental Housing Amendment Act — don’t jump the gun
While the change in law has been assented to, it has not been promulgated, meaning that if you change your lease you may be in for a nasty surprise
Pre-empting the Rental Housing Amendment Act, which has been envisioned to formalise a list of requirements that set out, in clear terms, the obligations of both landlord and tenant in a rental agreement, could land you in hot water.
Michelle Dickens, MD of TPN Credit Bureau, which specialises in tenant behavioural profiles, warns that making changes to leases before the amendment act becomes law will leave you with little to no recourse should litigation be your final option to settle a dispute.
She references a case heard last year in the high court in Pretoria, where the judge set aside an application brought by a landlord relating to a dispute that had gone through the rental housing tribunal. In the case — Kondile vs Canary and Another — the landlord had asked for the rescinding of a tribunal ruling, based on the amendment act. The case was thrown out with costs awarded to the tenants.
Since the Rental Housing Act came into force almost two decades ago, several practical and statutory weaknesses became apparent for both landlords and tenants.
One of the flaws in the original act was the efficacy of the rental housing tribunals, which were set up as a special body to resolve disputes where the rights of the landlord or tenant were infringed. However, lack of training, no teeth to enforce rulings, and dysfunction, or absence of tribunals altogether in certain municipalities, have frustrated stakeholders.
An important addition in the amendment bill is to extend the powers of the rental housing tribunals as well as grant them authority to rescind or change a ruling they have made. The amendment bill also contains a set of requirements stipulating how deposits should be handled and invested, leases drawn up in writing, and more.
The problem is that an act (or bill) only becomes law when it has been promulgated, and the Rental Housing Amendment Act of 2014 has been assented to, but not yet promulgated, and there is no clarity as to when this will happen.
Being caught without legal redress
Pre-empting the promulgation of the act may prejudice you, and any new clauses referring to the amendment act may, in fact, be incorrect in law, says Dickens.
“Don’t prejudice yourself by … changing your lease agreements early,” she cautions. “It is risky business to pre-empt the law. In doing so, you might prejudice either party and cause confusion as to what the real rights and obligations between the parties in the rental relationship are. For example, the Rental Housing Amendment Act requires formalities to be fulfilled that the current act does not.
“Any new clauses added to a current lease agreement that directly refers to the Rental Housing Amendment Act would, by law, be incorrect.”
So, when will the amendment act become law?
Dickens is unequivocal. “It is a fact. The Rental Housing Amendment Act 34 of 2014 is not yet in operation.”
An act becomes operational after it has been promulgated — a process of publication of the official date from which the act needs to be complied with. This means the date from which the law becomes applicable to how we conduct our affairs. This date is published in the Government Gazette, on the president’s say so.
This can take time, with Dickens pointing out that “the Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Act was signed off in November 2007, but more than 11 years later it is still not in operation”.
Dickens says the industry expects that the new obligations on landlords and tenants in terms of the amended act will only become effective six months after it has been promulgated.
The whole point of the amendments, besides setting out clearer obligations between the landlord and tenant, is to strengthen the rental housing tribunals. This requires training, capacity building and the establishment of a panel to appoint competent and qualified chairs for the tribunals, which also needs to be published in the Government Gazette.
Clearly, this process may well take a time to be finalised. In the interim, make sure that your lease is congruent with the current law, so you are covered legally, advises Dickens.