The amended level 3 lockdown regulations give tenants who can’t pay their rent due to “the disaster” some “breathing room”, but landlords will still be entitled to demand their rentals and cancel leases if tenants remain in breach indefinitely.
That’s according to Cape Town-based rental property attorney Marlon Shevelew.
The regulations make the following practices “unfair” in terms of the Disaster Management Act:
- cutting off water or electricity to a rental unit if the landlord has failed to provide reasonable notice and an opportunity for the tenant to “make representations”, failed to make the necessary arrangements regarding alternative payment arrangements, or failed to ensure the ongoing provision of basic services during the national state of disaster;
- imposing any penalty for the late payment of rental “where the default is caused by the disaster”, whether or not the penalty takes the form of an administrative charge or any other form other than interest;
- the failure of a landlord or tenant to engage reasonably and in good faith to make arrangements to cater for the demands of the disaster; and
- any other conduct prejudicing the ongoing occupancy of a place of residence, prejudicing the health of someone or prejudicing someone’s ability to comply with the applicable restrictions on movement, that is unreasonable or oppressive, having regard to the prevailing circumstances.
TimesLIVE asked Shevelew what the “unfair practices” provision meant for landlords and tenants.
“The regulations shift the onus to landlords,” he said. “For example, a landlord who wants to levy a penalty, other than interest on late payments, will have to demonstrate to a rental housing tribunal [if a complaint is laid by a tenant] that their conduct was not an unfair practice.
“The regulations are clearly intended to deter landlords from terminating services, levying penalties or taking action which impacts on the occupancy of residential property.”
However, the regulations do not say tenants are permitted to pay late or to withhold rental, he warned.
“In fact, the regulations specifically leave the position in respect of interest on late payments unchanged,” he said.
“The regulations are not intended to be permanent, and are not intended to be a cover all for defaulting tenants. They only apply to situations where the late payment is caused by the disaster itself,” Shevelew stressed.
“In such a situation, the conduct would be presumed to be an unfair practice, but where the landlord can demonstrate the late payment was caused by some other factor, the subsection will not apply.”
Even where a tenant’s late payment is caused by the disaster, Shevelew said, landlords were entitled to levy interest on late payments, and the levying of such interest will not amount to an unfair practice.
He advised landlords to seek legal advice before taking steps against tenants.
“They will have to be able to demonstrate their conduct did not amount to an unfair practice should a complaint be laid at the rental housing tribunal.”
As for the impact on tenants, Shevelew said as long as the new regulations remain in place, they will be given the benefit of the doubt with regard to late payment disputes with landlords.
“A landlord who takes any of the steps listed in the regulations will have to prove such conduct was not unfair,” he said.
However, he cautioned tenants not to regard this as a “free-for-all” as landlords will still be entitled to demand payment of rental and cancel leases if tenants remain in breach indefinitely.
“Tenants should use such breathing room to make sure the communication between themselves and their landlords is open and frank to avoid surprises, or litigation, down the line.”
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