A reader writes that he has heard about the introduction of the Bill and that it is potentially far-reaching in application. He asks what consequences, if any, the new amendments might have for him as a landlord.
Firstly, it should be noted that, as the amendments are still in Bill status, they do not yet carry the force of law, says Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town.
“Secondly, the Bill provides that the amendments will only come into effect six months after the enactment of the amendments to the Act.”
Van der Merwe says the Bill brings about a number of amendments, a few of which are of interest to landlords and tenants.
“The Bill introduces a few new definitions, notably ‘habitability’ and ‘maintenance’.”
Van der Merwe says habitability relates to the “safety and suitability” of a dwelling and makes reference to a fairly comprehensive list of considerations to be used in the assessment of whether or not a dwelling is habitable.
“Maintenance refers to the ‘repairs and upkeep’ required to ensure that a dwelling is kept in a habitable state.
“The envisaged section states that ‘a landlord must provide a tenant with a dwelling that is in a habitable condition, as well as maintain the existing structure of the dwelling and where possible facilitate the provision of basic services to the dwelling’.”
Van der Merwe says this is a fairly onerous provision since it goes beyond what the tenant is prepared to accept with regard to the dwelling and instead involves an objective determination of the state of the dwelling based on the definition of habitability.
Of course, the continuing obligation on the landlord to maintain the dwelling should not be overlooked, says Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West.
“Despite the two terms being mentioned in a single provision, the obligations are quite distinct.”
Hill says the landlord must provide a dwelling in a certain state and then maintain the dwelling to ensure that it is habitable for the duration of that tenant’s stay.
“The terms of the lease will also have to be reduced to writing by the landlord whereas the current position is that the landlord only has to provide a written version on request by the tenant.”
Presumably, this is to avoid any dispute arising out of any misinterpretation or misunderstanding as to the respective rights and obligations of the parties, says Hill.
“The Bill also introduces the concept of a guideline lease, still to be provided, which the landlord and tenant can use as a guideline in determining and recording their own agreement.”
Hill says the Bill also introduces a number of technical provisions relating to the operation and application of the Act by the Tribunal.
“It provides the mechanisms applicable to the manners in which disputes between landlord and tenant may be resolved without either party necessarily turning to the courts for a remedy.”
This should encourage a system that is expedient and accessible to all parties, says Hill.
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