|South Africa Rental Housing Bill|
REPUBLIC OF SOUTH AFRICA
HOUSING RENTAL BILL, 1998
(MINISTER OF HOUSING)
To promote access to adequate housing through the proper functioning of the housing rental market; to promote the provision of housing rental property; to address deficiencies in the housing rental market in a manner which is fair to landlords and tenants; to make provision for regulated areas; to establish Housing Rental Tribunals; to define the functions, powers and duties of such Tribunals; to lay down general principles governing conflict resolution in the housing rental sector; to make provision for assured tenancies in regulated areas; to provide for the facilitation of sound relations between landlords and tenants and for this purpose to lay down general requirements relating to contracts between landlords and tenants; to repeal the Rent Control Act, 1976 (Act No. 80 of 1976); and to provide for matters connected therewith.
WHEREAS in terms of section 26 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996),
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions;
AND WHEREAS the renting of housing is a key component of the housing sector;
AND WHEREAS there is a need to promote the provision of housing rental stock;
AND WHEREAS there is a need to regulate the housing rental market in buildings or areas where it is not functioning properly;
AND WHEREAS there is a need to promote fair practices and certainty in the renting and leasing of housing by, inter alia, laying down minimum requirements for written housing lease agreements;
AND WHEREAS there is a need to balance the rights of landlords and tenants to protect both landlords and tenants against unfair practices and exploitation;
AND WHEREAS there is a need to introduce mechanisms through which conflicts between landlords and tenants can be speedily resolved at minimum cost to the parties;
AND WHEREAS there is a need to curb excessive rents in specific instances and to obviate unnecessary intervention in the housing rental market so that incentives remain for investors and developers to actively participate in the provision of housing for rental;
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows :-
1. In this Act, unless the context indicates otherwise -
"agreement" means an agreement of lease in respect of a dwelling between a landlord and a tenant as contemplated in section 19(1) and in respect of which rent is payable by the tenant to the landlord;
"assured tenancy" means a tenancy as contemplated in section 13;
"dwelling" includes any house, hut, shack, flat, apartment, room, outbuilding, garage or similar structure which is utilised for housing purposes, as well as any storeroom, outbuilding, garage or demarcated parking space which is leased as part of the agreement;
"Foundation" means the Social Housing Foundation referred to in section 3;
"Gazette" means the Provincial Gazette of a province, or for the purposes of section 16(1), the Government Gazette;
"housing rental property" includes one or more dwellings;
"landlord" means the owner of a dwelling which is leased for housing purposes and includes his or her duly authorised agent or a person who is in lawful possession of a dwelling and has the right to lease it;
"MEC" means the member of the Executive Council of a province responsible for housing matters in the province in question;
"Minister" means the national Minister of Housing;
"regulated area" means an area declared as such by the MEC as contemplated in section 5 and includes an area deemed to be a regulated area in terms of section 10;
"tenant" means the lawful occupier or lessee of a dwelling which is leased by the landlord for housing purposes;
"Tribunal" means a Housing Rental Tribunal established in terms of section 7(1).
2. Subject to the provisions of Chapter III this Act shall apply in respect of all dwellings throughout the Republic.
Promotion of provision of housing rental property
Recognition of Social Housing Foundation
3. (1) The Social Housing Foundation, registered as a company in terms of section 21 of the Companies Act, 1973 (Act No.61 of 1973), under the name of the National Housing Finance Development Foundation, is hereby deemed to be a national institution established by the Minister in terms of section 3(4)(h) of the Housing Act, 1997 (Act No 107 of 1997).
(2) The aim of the Foundation is to promote, support and assist in the establishment of a sustainable, integrated social housing development process in the Republic of South Africa.
(3) The Foundation-
Measures to increase provision of housing rental property
4. (1) The Minister may introduce a rental subsidy programme, as a national housing programme, instituted in terms of section 3(4)(g) of the Housing Act, 1997 (Act No 107 of 1997), to stimulate the supply of housing rental property for low income wage earners in a manner that promotes urban integration and renewal.
(2) Parliament may appropriate annually to the South African Housing Fund an amount to finance such a programme.
(3) A separate account of income and expenditure in respect of such programme must be kept.
(4) The provisions of section 12(1)(b) of the Housing Act, 1997 (Act No 107 of 1997), do not apply to any amount appropriated by Parliament for purposes of such programme.
Declaration of regulated areas
5. (1) If, after consultation with the relevant local authority, the MEC has good reason to believe that the housing rental market is not functioning properly in any area of the Province, he or she may by notice in the Gazette publish his or her intention to apply the provisions of this Chapter to that area.
(2) A notice referred to in subsection (1) must -
(3) The grounds on which the MEC may base his or her intention to apply the provisions of this Chapter are that -
(4) The MEC may, after consideration and/or further investigation of representations received in response to the notice referred to in subsection (1), withdraw the notice referred to in subsection (1) by the publication of a withdrawal notice in the Gazette or declare by notice in the Gazette the area, or part of such area specified in the notice referred to in subsection (1), to be a regulated area for purposes of the application of the provisions of this Chapter.
(5) The MEC may, substantially in accordance with the method and procedure provided for in subsection (1), after consultation with the Tribunal and after due notice and consideration of representations, withdraw or amend a notice declaring an area to be a regulated area and such area shall, as the case may be, either cease to be a regulated area or be a regulated area to the extent amended by the notice with effect from the date of publication of that notice in the Gazette.
(6) The MEC may at the request of a municipality, provided that the MEC is satisfied that such municipality possesses adequate resources to apply the provisions of this Chapter effectively, delegate the powers, duties and responsibilities conferred on the MEC by this Chapter to that municipality and for the purposes of applying this Chapter, with the exception of section 12(2), any reference to the MEC is deemed to be a reference to that municipality.
Consequence of declaration of an area as a regulated area
6. With effect from the date on which an area is declared a regulated area in terms of section 5 -
Establishment of Housing Rental Tribunals
7. (1) The MEC must, by notice in the Gazette establish a Housing Rental Tribunal or Tribunals for a regulated area or area deemed to be a regulated area in terms of section 10.
(2) A Tribunal must consist of not fewer than 5 and not more than 7 members appointed by the MEC on such conditions and for such period as he or she may determine: Provided that such period does not exceed 3 years.
(3) The MEC must designate a member, who should preferably have a qualification in law, as the chairperson of such Tribunal.
(4) In appointing any person as a member of a Tribunal the MEC must ensure that-
(5) (a) The MEC may at the request of any member of the Tribunal other than the Chairperson appoint an alternate member for any member of the Tribunal.
(b) An alternate member may attend and take part in the proceedings at any meeting of the Tribunal whenever a member in whose stead he or she has been appointed as an alternate member, is absent from the meeting.
(6) A member or alternate member of the Tribunal other than a person who is in the full-time employment of the State, must be appointed on such conditions of service as the MEC in concurrence with the MEC responsible for provincial expenditure may determine.
(7) Conditions of service determined under subsection (6) may differ according to whether the person concerned serves on a Tribunal in a full-time or part-time capacity.
(8) Members and alternate members must be reimbursed in respect of reasonable expenditure incurred in the exercise of their duties under this Act.
(9) The MEC may terminate the office of a member for reasons which are just and fair and substitute such person in accordance with the provisions of subsection (4).
Meetings of a Tribunal
8. (1) A Tribunal must meet at such times and places as the chairperson may determine.
(2) The quorum for a meeting of a Tribunal shall be at least half of the number of members appointed in terms of section 7 : Provided that a member or alternate member representing each of the groups referred to in section 7(4)(a) and (b) and a member or alternate member referred to in section 7(4)(c) must be present at a meeting of a Tribunal.
(3) The chairperson must preside at all meetings of the Tribunal and if the chairperson is absent or unable to fulfill any function of the chairperson, the members present may elect a person from amongst themselves to act as chairperson during such absence or incapacity.
(4) The decision of a majority of the members present at a meeting of the Tribunal shall constitute a decision of such Tribunal, and in the event of an equality of votes, the person presiding at the meeting in question shall have a casting vote.
Powers and duties of Housing Rental Tribunals
9. (1) Subject to section 10, a Housing Rental Tribunal must investigate any representations or complaints regarding a matter relevant to the grounds referred to in section 5(3).
(2) A Housing Rental Tribunal shall have powers to -
Certain dwellings deemed to be situated in a regulated area
10. Any dwelling which on the date on which this Act comes into operation is occupied by a tenant who is protected under those provisions of the Rent Control Act, 1976 (Act No. 80 of 1976) that provide for the determination of reasonable rents and limit the circumstances under which a tenant may be evicted, is deemed to be situated in a regulated area and the provisions of this Chapter and Chapter IV apply mutatis mutandis to such a dwelling as if it was situated in an area declared to be a regulated area in terms of section 5(4).
Appointment of inspectors, technical advisers and other administrative staff
11. (1) The MEC may for the purposes of performing his or her functions in terms of this Act, or the functions of the Tribunal established under section 7, appoint inspectors, technical advisers and administrative support staff: Provided that if officials are appointed such appointments must be done in accordance with the laws governing the public service.
(2) Any person appointed in terms of subsection (1) must be provided with a certificate of appointment signed by the MEC or an officer designated by him or her.
(3) Inspectors and technical advisers must for the purposes of investigating any complaint received by the Tribunal have the power to -
General principles governing dispute resolution in the housing rental sector
12. (1) Any landlord or tenant or group of landlords or tenants of a dwelling situated in a regulated area may make representations or lodge a complaint with the Tribunal regarding a matter relevant to the grounds referred to in section 5(3).
(2) The MEC may by notice in the Gazette make regulations defining unfair practices relating to the unreasonable actions of landlords or tenants referred to in section 5(3)(d) or (e), and create offences in respect thereof and provide for penalties in respect of any contravention thereof.
(3) In respect of any representations or complaint lodged with the Tribunal, the Tribunal must -
(4) In assessing any representations or a complaint the Tribunal must have regard to -
What constitutes an assured tenancy
13. A tenancy under which a dwelling is let as a separate dwelling situated, or deemed to be situated, in a regulated area is for the purposes of this Act an assured tenancy if and so long
(1) the tenant or, as the case may be, each of the joint tenants is an individual; and
(2) the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling as his or her principal home; and
(3) the tenancy is one which by virtue of section 14 is not an assured tenancy;
14. The following tenancies are not assured tenancies :
(1) a tenancy which is granted to a person who is pursuing, or intends to pursue, a course of study provided by an educational institution and which is so granted by that institution;
(2) a tenancy the purpose of which is to confer on the tenant the right to occupy the dwelling for a holiday.
(3) a tenancy which is granted to a person under an agreement as contemplated in section 19(2), unless the period of the agreement has expired and the tenant has remained in occupation of the dwelling with the express or tacit consent of the landlord.
Grounds for notices to tenants to vacate assured tenancies
15. (1) The landlord of an assured tenancy may not give the tenant notice to vacate the dwelling except on the following grounds :
(2) Notice on the grounds of subsection 1(b) may not be given without the approval of the Tribunal first being obtained.
Increases in rent in respect of assured tenancies
16. (1) The landlord of an assured tenancy may not increase the rent for the dwelling except by an amount equal to the actual increase in costs in respect of the elements of rent referred to in section 20(1)(h)(ii), (iii) and (v) plus an amount equal to the percentage prescribed by the Minister by notice in the Gazette of the sum of the elements of rent referred to in section 20(1)(h)(i), (iv) and (vi).
(2) Notwithstanding the provisions of subsection (1), either party of an assured tenancy may apply in writing to the Tribunal for the determination by the Tribunal of a reasonable rent in terms of section 9(2)(a), and must serve a copy of the written application on the other party.
Determination of reasonable rent by Tribunal in respect of assured tenancies
17. (1) A Tribunal must on application made in terms of section 16(2) determine a reasonable rent in accordance with subsection (3).
(2) Before determining a reasonable rent the Tribunal must allow the other party at least 21 days to make written representations in response to the application made in terms of section 16(2).
(3) In determining a reasonable rent a Tribunal must -
(4) The Tribunal must convey its determination of a reasonable rent by way of a written notice to both parties and such notice constitutes an order for purposes of section 9(2)(h).
Relations between landlords and tenants
18. (1) In advertising housing for rent, or in negotiating a lease of housing with a prospective tenant, or during the term of a housing lease, a landlord may not unfairly discriminate against such prospective tenant or tenant, or the members of such tenant's household or the bona fide visitors of such tenant, on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(2) During a tenancy the landlord must at all times respect and protect the dignity of his or her tenants.
(3) A tenant has the right, during his or her tenancy, to privacy and the landlord may only exercise his or her right of inspection in a reasonable manner after reasonable notice to the tenant. The tenant's rights vis-a-vis the landlord include his or her right not to have -
(4) The rights set out in subsection (3) apply equally to members of the tenant's household and to bona fide visitors of the tenant.
Agreements between landlords and tenants
19. (1) An agreement between a landlord and tenant may be verbal or in writing.
(2) If in writing, the agreement must be signed by the parties, or by their agents acting on their written authority and must contain at least the standard provisions set out in section 20 hereunder.
(3) Any agreement referred to in subsection (2) which does not contain any of the standard provisions set out in section 20 is voidable at the instance of the tenant.
(4) The standard provisions referred to in section 20 cannot be waived by either the landlord or the tenant.
(5) Either party may, within 7 days of the conclusion of a verbal agreement, insist that such agreement be reduced to writing.
(6) The landlord must provide the tenant with a signed copy of the agreement within 7 days of the date on which such written agreement is concluded;
(7) In respect of an agreement referred to in subsection (2) -
(8) If on the expiration of the agreement referred to in subsection (2) the tenant remains in the dwelling with the express or tacit consent of the landlord the parties are deemed, in the absence of a further written agreement, to have entered into a periodic tenancy agreement on the same terms and conditions as the expired agreement, except that at least one month's written notice must be given of the intention by either party to terminate the agreement.
Standard provisions to be incorporated in agreements between landlords and tenants
20. (1) The following provisions must be in all agreements referred to in section 19(2) :
(2) A list of defects registered in terms of section 19(7)(e) must be attached as an annexure to all agreements referred to in section 19(2).
(3) A landlord must ensure that the provisions of subsections (1) and (2) are complied with.
Offences and penalties
21. Any person who contravenes the provisions of sections 6(a) and (b), 9(2)(e), 16(1), 18, 19(6) and (7) and 20(3), shall be guilty of an offence and liable on conviction to a fine of R5 000,00 or imprisonment for a period of 2 years or to both such fine and imprisonment.
Repeal of laws
22. The laws specified in the Schedule are hereby repealed to the extent indicated in the third column thereof.
23. This Act is called the Housing Rental Act, 1998.
LAWS REPEALED BY SECTION 22
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