The affiliation between a landlord and a tenant can often be difficult. Problems arise which cannot be harmoniously resolved and the necessity for self-regulating party turn out to be essential.
It is so easy for misinterpretations and disagreements to ascend amongst landlords and tenants, and although greatest of these issues can be determined with a bit of open communiqué and compromise, from time to time self-governing third-party intercession is required.
In the case of these disagreements, the first step ought to be the Rental Housing Tribunal, which offers a free facility. It’s free, and to get going you lodge a complaint with your local Tribunal.
- RENTAL HOUSING TRIBUNAL (“RHT”)
The Rental Housing Tribunal only deals with residential housing, not to commercial or industrial leases.
- PURPOSE OF RENTAL HOUSING TRIBUNAL (“RHT”)
RHT has been established in terms of the Rental Housing Act with a sole purpose to determining disagreements amongst landlords and tenants by balancing the rights of both sides and to guard them both from “unfair practices and exploitation”.
- Functions of RHT
- Obtains and examines complaints of landlords or tenants of property.
- Investigate the complaint to establish whether there is a dispute between the landlord and tenant.
- Determinations regarding disagreements amongst landlords and tenants by mediation and arbitration.
- A neutral mediator is selected to aid to resolve the disagreement and settle an arrangement.
“Mediators do not choose the conflicts they became involved in, but the parties to the conflict choose the mediator. Their participation as intermediaries is based on the trust of all the conflicting parties” (quote by Martti Ahtisaari).
- The landlord and the tenant will be informed in writing of the mediation date and time.
- Where a mediation agreement has been concluded, such an agreement must be made a ruling of the RHT.
- If the Landlord or Tenant is unable to reach an agreement or arrangement through mediation it should be referred to arbitration which is a formal hearing where a ruling delivered.
- The landlord and tenant will be subpoenaed to appear at the Tribunal at a specific date and time. “At all events, arbitration is more rational, just, and humane than the resort to the sword” (quote by Richard Cobden).
- After the arbitration, also known as a hearing, the RHT will just and fair-minded ruling, which is obligatory on both the tenant and the landlord.
- This ruling is considered to be an order of the Magistrate’s Court. A ruling of the RHT may be taken on appraisal to the High Court.
- If the landlord or tenant fail to fulfil with the ruling of the RHT, s/he may be condemned of an offence and sentenced to make payment of a fine, to imprisonment or both payment of a fine and imprisonment.
- Provides guidance and offers edification to landlord and tenants around their rights and duties such as the following:
- Landlord’s rights:
- Swift and consistent imbursement of rental and extra costs as stipulated in the lease (for example: rates; water; utilities; electricity etc.
- Recuperate outstanding rental or somewhat other sum that is owing and owed after gaining a governing from the Tribunal or by court order.
- Cancelation of the lease on reasons that do not institute a biased practise.
- Reclaim the property after first gaining a Court Order
- Claim reimbursement for damage to the property if produced by the occupant or his/her guest.
- Tenant’s rights:
- The Tenant has the right to privacy. The landlord cannot search tenant’s person, property or home or seize the tenant’s possessions – except in terms of law via court order and the landlord cannot infringe on the privacy of the tenant’s communications.
- Right to live in a safe structural property.
- GRIEVANCES THAT MAY BE LODGED WITH RHT BY LANDLORD OR TENANT
This list is not exhaustive, but are a few examples of issues that the RHT can intervene
- Non-compliance with the Rental Housing Act
- non-payment of rentals,
- failure to refund deposits,
- Not delivering receipts, in respect of payments made, to the tenant
- exploitive rentals
- determination of fair rentals
- Unacceptable living conditions, such as overcrowding or hygienic issues,
- Insufficient maintenance or repairs of a dwelling;
- Damage to property
- harassment and intimidation,
- unlawful seizure of tenant’s belongings,
- Discrimination by the landlord of the tenant on ground of race, sex etc.,
- illegal lock-out or illegal disconnections.
- Eviction without a court order
- PROCESS AND LODGING A GRIEVANCE WITH RHT
From the time a grievance is lodged, it ought to take no more than three months for a grievance to be determined by an RHT.
- FIRST STEP: LODGING A GRIEVANCE BY TENANT OR LANDLORD
- Complete the prescribed forms available from the RHT.
- The complete forms together with the papers in support of the grievance may be lodged with the Tribunal in person, by post, by fax or by e-mail at the relevant RHT offices which can be determined by looking online or by phoning 0860 106 166/ 011 355 4000/ 012 483 502.
- The documents in support of the grievance may include:
- copies of the landlord/tenant’s identity document;
- written lease agreement, or the terms and conditions of the verbal lease agreement;
- proof of payment,
- if any; addresses of the tenant and the landlord; and
- contact particulars of the tenant and the landlord.
- SECOND STEP: OPENING A FILE BY RHT
- The RHT will then open a file for each grievance and send a letter to all the parties detailing the nature of the grievance.
- THIRD STEP: INVESTIGATION BY RHT
- The RHT will conduct a preliminary inquiry.
- FOURTH STEP: MEDIATION
- A mediation gathering will be organized to attempt to resolve the matter.
- If no resolution is reached between the parties, the matter will be referred to arbitration.
- FIFTH STEP: ARBITRATION
- As soon as arbitration has taken place, a compulsory ruling will be given down to both parties.
- SIXTH STEP: RULING BINDING
- Any ruling will be obligatory in terms of the Magistrate’s Court Act.
- SEVENTH STEP: IF NOT SATISFIED WITH RULING
- If one of the parties is displeased with the result, he/she can have the matter reviewed by a High Court.
- DUTIES OF LANDLORD AND TENANT UNTIL OUTCOME OF RULING
- landlord may not evict the tenant;
- tenant must continue to pay the rent; and
- landlord must continue to maintain and/or repair the property.
- DO’S AND DON’TS FOR AVOIDING RENTAL DISPUTES
- PROPERTY INSPECTIONS
“Truth is confirmed by inspection and delay; falsehood by haste and uncertainty” (quote by Tactitus).
Both landlords and tenants must conduct a joint inspection of a property prior to occupation and before it is vacated.
There are two types of inspections, namely incoming inspection and outgoing inspection.
- Incoming Inspection
The Landlord and Tenant must jointly inspect the property, before the Tenant moves in, to determine the presence of any faults or damage and to determine the Landlord’s accountability to remedy or with an understanding to record them. This list of defects must be attached to the lease as an annexure.
- Outgoing Inspection
On the termination of the lease, the Landlord and the Tenant must organize a joint inspection at a reciprocally suitable time, with the view to establish what damage was caused throughout the Tenant’s occupation.
If the Tenant fail to reply to the Landlord’s demand for an inspection, the Landlord must examine the property within 7 days after the expiration, in order to evaluate any damage or loss.
- To be advanced by the Landlord/Agent in an interest-bearing account.
- The Landlord can use the deposit plus interest to the payment of all amounts for which the tenant is accountable under the lease.
- Balance of the deposit to be repaid to the Tenant not later than 14 days after refurbishment of the property’s damage and arrear payments.
- If nothing owing by the Tenant to the Landlord, then deposit plus interest to be repaid within 7 days after termination of lease.
- CREDIT CHECKS
“The most important thing for a young man is to establish a credit… a reputation, character” (quote by John D. Rockefeller)
Landlords need to obtain consent from the Tenants to attend to credit, background, financial and reference checks.
- TENANTS AND LANDLORDS FAMILIARISE WITH RULES AND LAWS
“Rules are for the obedience of fools and the guidance of wise men” (quote by Harry Day).
Tenants and landlords should familiarise themselves with the rules and laws pertaining to rentals so that they do not end up in a situation where they are being treated unfairly or exploited.
- LEASE AGREEMENT
“Read your contracts. Up and down, left and right.” (quote by Lauren Jauregui).
Prevention being better than cure…
Start off with a properly-worded, clear and comprehensive lease. Make sure you comply with Rental Housing Act basics like joint inspections for damage, investment and refund of deposits, avoiding unfair practices and so on.
For most disputes however, both landlords and tenants should seriously consider following the quick, cheap and easy Tribunal route.
(NOTE: this article is for information purposes only. Each case depends on
merits of matter and should be consulted with an attorney)