Tag Archives: Consumer Protection Act

What tenants need to know to protect their rights

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Must my residential lease agreement be in writing?

It is currently not a requirement for a residential lease agreement to be in writing – a verbal agreement where the rent and rented property is identified is recognized by South African common law and is just as valid as a written agreement. This may, however, not remain the position for much longer. The Rental Housing Amendment Act, which is not in operation yet, requires that all lease agreements should be in writing, and places the onus of ensuring compliance herewith on the Landlord. A lease agreement must, however, be reduced to writing if the tenants requests this from the landlord.

As a rule, it is preferable to enter into a written lease agreement, as it brings a measure of certainty regarding the contractual terms, rights, and duties. Verbal lease agreements often lead to “he-said-she-said” disputes and conflict.

Leases can also be formed by conduct alone. For example, if you as a tenant pay the owner of the property a monthly amount and they accept the money on the shared understanding that the payment is paid in exchange for the tenant being allowed to live in the rented property, then there is a lease agreement between the parties. Such an agreement can easily lead to conflict when one of the parties unilaterally change their conduct by, for example, paying a lesser monthly amount or sending an electricity bill to the tenant where the owner had always paid it in the past.

How long can my lease endure?

A fixed-term lease may endure for a maximation period of 24 months in terms of the Consumer Protection Act. This restriction only applies to natural persons. It may, however, be possible for a lease to endure for a longer period (as stipulated in the lease agreement) if the parties can show that there is a demonstratable financial benefit to the lessee.

In what condition must the lease premises be when I move in?

The Landlord must make the premises available for occupation in a condition reasonably fit for the purpose for which it was let, namely human habitation. The general state of the property should be well-documented during the ingoing inspections by listing and taking photographs of any defects. It is advisable for the tenant to view and inspect the premises before signing the lease agreement, to ensure that the premises are in a good and safe condition.

Can I sublet the lease premises?

This will depend on the agreement. If there is no clause in the written lease agreement making provision for Subletting, a lessee will be entitled to sublet the property without the Landlords consent. The latter is qualified in that the proposed sublessee must not be a person to whom the original lessor could reasonably object. If the lease does make provision for Subletting, the provisions of the lease agreement must be followed.

What can I do if my landlord does not keep up their side of the bargain?

The Landlord is bound to the terms and conditions of the lease just like the tenant is. The Landlord’s duties in terms of the lease can therefore be enforced in various ways. If the dispute cannot be resolved on an informal basis, the first port of call will be the lease agreement. The written lease agreement may make provision for disputes and the steps to be taken during a dispute. In the absence of such a clause, the tenant can lodge a complaint with the Rental Housing Tribunal. The Rental Housing Tribunal resolves complaints through dispute resolution mechanisms such as mediation and arbitration. The parties can also approach their attorneys for legal advice.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

How to evict an illegal tenant

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Landlords who have tenants that they believe are occupying their premises illegally may not forcefully remove such tenants. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (No. 19 of 1998) provides for the prohibition of unlawful eviction and also provides proper procedures for the eviction of unlawful occupiers.

According to the Act:

  • no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property;
  • 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;
  • it is desirable that the law should regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of land owners to apply to a court for an eviction order in appropriate circumstances;
  • special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and that it should be recognised that the needs of those groups should be considered;

Procedure regarding evictions in terms of the PIE Act:

  1. According to the Consumer Protection Act (CPA), to cancel a fixed-term lease you must give the tenant at least 20 business days’ notice to rectify a material breach of the lease, failing which the lease will be cancelled.
  2. After 21 days, you can send the tenant a letter to cancel the lease. The letter should state that the tenant is now deemed to be occupying the property unlawfully and that he or she must vacate the premises by a specific date.
  3. If the tenant/occupier has not left the premises by the date mentioned in the letter of cancellation, then your lawyer can lodge an eviction application, which includes seeking the court’s permission to serve a notice of motion on the occupier.

References:

  • Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (No. 19 of 1998), South Africa
  • “How to evict a tenant (lawfully)”, Mark Bechard, Personal Finance, IOL. https://www.iol.co.za/personal-finance/how-to-evict-a-tenant-lawfully-2059984

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

POPI Act

A2The Protection of Personal Information Bill, which will soon become law and is commonly referred to as POPI, seeks to regulate the processing of personal information.

It must be read with other relevant statutes such as:

  1. Electronic Communications and Transactions Act 25 of 2002 (‘ECT’)
  2. Promotion of Access to Information Act 2 of 2002 (‘PAIA’)
  3. Regulation of Interception of Communications Act 70 of 2002 (‘RICA’)
  4. Consumer Protection Act 68 of 2008 (‘CPA’)

Personal information of both employees and clients is – given e-commerce and technology used in connecting businesses – becoming instantly accessible to third parties.

POPI aims to introduce certain protection principles to establish minimum requirements for the processing of personal information. There are eight information protection principles contained in chapter 3 of the Bill, namely:

Accountability; Processing limitation; Purpose specification; Further processing limitation; Information quality; Openness; Security safeguards; Data subject participation. 

The intention is to promote transparency with regard to what information is collected and how it is to be processed. This might be the end of all those unsolicited sales calls and spam we receive on a daily basis. 

Processing means broadly anything done with personal information, including collection, usage, storage, dissemination, modification or destruction (whether such processing is automated or not).

POPI compliance involves capturing the minimum required data, ensuring accuracy, and removing data that is no longer required. These measures are likely to improve the overall reliability of the organisation’s databases.

Compliance further demands identifying personal information and taking reasonable measures to protect the data, like tracking the workflow of client documents and ensuring that vital information is not misplaced or falls into the wrong hands.

The POPI Act is very much in line with similar legislation that exists in about 70 to 80 other countries, and South Africa is finally set to fall in line with international standards for the collection and handling of personal information.

The Act does not only protect the way in which information is used and/or re-used by the recipients of the information, but the party gathering the information also has the responsibility to ensure it is accurate, current and not misleading. Personal Information may only be processed if voluntary, specific and informed consent is obtained.

An Information Protection Regulator will be appointed who will have broad powers and may consider the public interest as opposed to an individual’s rights to privacy.

There are, however, cases where POPI does not apply. Section 4 Exclusions include:

  1. purely household or personal activity;
  2. sufficiently de-identified information;
  3. some state functions including criminal prosecutions, national security etc.;
  4. journalism under a code of ethics;
  5. judiciary functions etc.

Reference:

  1. http://www.popi-compliance.co.za/
  2. http://www.saaci.co.za/

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.