The pitfalls of constructive eviction
Landlords sometimes take the law into their own hands in an attempt to get rid of troublesome tenants. But tactics such as changing the locks, cutting off the water or electricity, intimidating a tenant or making the property uninhabitable are illegal, and amount to a constructive eviction. This strategy will only land you in hot water.
In terms of section 16 of the Rental Housing Amendment Act 35 of 2014 (RHA), constructive eviction is illegal and the tenant can terminate the lease and seek damages. If found guilty, the landlord will be liable to a fine or imprisonment of up to two years, or to a fine and imprisonment.
Although the Amendment Act has not yet come into effect, it is important to understand its provisions and take this into account when signing a lease agreement. Download your free lease agreement template.
Breaking the law: an unfair practice
The Rental Housing Amendment Act seeks to remedy the shortcomings of the Rental Housing Act 50 of 1999 and to provide better protection for tenants. The latter has been criticised for “having no teeth”, especially regarding the inability of the Rental Housing Tribunal to enforce rulings
The Amendment Act is an attempt to improve the tenant/landlord relationship by extending the rights of tenants and the obligations of landlords. It is designed to be fair to both parties and to ensure that neither finds themselves taken advantage of or abused. The Amendment Act defines unfair behaviour as an “unfair practice”. Breaking the law is deemed an unfair practice.
So, if the possession of a property is disrupted by the landlord cutting off the electricity, for example, the tenant can apply for a spoliation order to have the electricity restored, and the landlord will be found in breach of the RHA.
Of course, landlords have the right to evict tenants, but you cannot take the law into your own hands and must follow the correct legal process and seek an eviction order from the courts. Learn more about navigating the dos and don’ts of eviction here and here.
What changes are on the cards?
In terms of the yet-to-be-gazetted Amendment Act:
Lease agreements are required to be in writing and verbal agreements are no longer binding.
The landlord must repay the tenant’s deposit and interest.
The landlord may not cut services such as water or electricity.
The landlord may not lock the tenant out of the premises.
The dwelling must be habitable.
The landlord is liable for maintaining the leased premises.
The Rental Housing Tribunal, which was established to resolve disputes between landlords and tenants, will get more clout.
In conclusion
Once the Rental Housing Amendment is gazetted, landlords and tenants have six months before additional obligations take effect. So, make sure you understand the Amendment Act as well as your rights and responsibilities. As long as you comply with the legislation, there is no cause for concern.
And please, don’t cross the line and take matters into your own hands, you will get into trouble. It’s just not worth it.
Contact us
Are you experiencing issues with your tenant or landlord regarding changing of locks or cutting off services? Get in touch with us to find out more about the Rental Housing Amendment Act and how to stay on the right side of the law. Simon Dippenaar & Associates is a Cape Town law firm of specialist eviction lawyer, now operating in Johannesburg and Durban, and we act for both landlords and tenants. Call us on 087 550 2740 or email sdippenaar@sdlaw.co.za for help with any property-related matters.