At times the relationship between landlords and tenants can become unstable. Perhaps you believe your landlord has treated you unfairly and you want to officially complain. The provincial Rental Housing Tribunals will help settle disputes between tenants and landlords.

The Rental Housing Tribunals (RHT) is a free service that falls under the Rental Housing Act (Act 50 of 1999). The purpose of RHT is to create a more stable rental housing sector and to allow disputes to be settled easily. RHTs will investigate, mediate and conduct hearings in response to a dispute.

The purpose of RHTs is to encourage cooperation between landlords and tenants. Should a disagreement arise because of an unfair practice, RHTs can help resolve the issue instead of lengthy and costly court cases.

Reasons for a RHT would include:

• The rental property not being properly maintained.
• Any unlawful evictions and unlawful notices to vacate.
• Not providing monthly statements.
• Not providing municipal services.

Both tenants and landlords can complain to the tribunals if they believe that the other party acting unfairly or broke their agreement. A tenant not looking after the rental property, for instance, can be grounds for the landlord to complain to the tribunals.

Try avoiding a dispute first

It would be better for both landlords and tenants if disputes were avoided in the first place. Therefore, it’s important for a landlord to write up a lease agreement for both the tenant and landlord to sign. Verbal agreements do exist, but if a tenant has asked for a written agreement, the landlord must provide one.

Important points to include in your lease agreement:

• The amount of rent to be paid and when.
• The purpose for which the property is rented (business/residential).
• The duration of the lease agreement.
• Who has the responsibility of maintaining the property.

The property should also be inspected by both parties, before rental and before the tenant vacates the property at the end of the lease agreement. This is to make note of any irregularities or damages on the property.

As a tenant it’s important to stick to the lease agreement. This includes paying your rent on the agreed date, taking care of the rental property and not damaging it. However, a landlord cannot interfere with the tenants right to enjoy the property either.

Resorting to a RHT

Taking your complaint to the tribunal may be your final decision. While the complaint is being process, it’s still necessary for rent to be paid and the property to be maintained.

Important steps for a RHT:

• A letter with the nature of the complaint must be sent to all parties involved.
• The RHT will start an investigation.
• Mediation will take place to try come to an agreement.
• If there is no agreement, a tribunal hearing or arbitration could follow.
• After arbitration, a binding ruling will be given to both parties. This would be enforced by the Magistrate’s Court Act.

This is a free and efficient way to resolve problems between tenants and landlords. However, should you be unhappy with a ruling you may take it to the High Court to be reviewed. Your legal advisor can be consulted if you’re uncertain what action you should take.

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)

Reference:

• Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.

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Many transfer attorneys have heard the question from a seller: “May I remove the stove or the curtain rails or the shelves or the … ?”

The most common dispute that arises between a seller and a purchaser is a dispute as to what is regarded as fixtures and  fittings. The simple answer is that this would be what the seller and purchaser agreed on in the offer to purchase, as the law leaves it to the seller and purchaser to make their own arrangements.

Usually the offer to purchase only states that the sale is “voetstoots and includes all improvements and all fixtures and fittings of a permanent nature”. It could also be that the offer to purchase does not refer to fixtures and fittings at all. If this is the case there are three factors that have to be  considered to determine whether a movable item is a fixture or a fitting.

1. The nature and the purpose of the item

The item should be of a permanent nature and intended to always serve the immovable property. In other words it must be attached to the land or the structure erected on the land. Examples of this are a carport, steel security gates welded to door frames, and an irrigation system.

2.  The manner and the degree of attachment

The question is whether the item loses its own identity and becomes an integral part of the immovable property or if the attachment is so secure that separation would involve substantial damage to either the immovable property or to the item itself. One must also take into account the method, time and costs involved in removing the item and whether the item could be used elsewhere.

3. The intention of the owner

One should look at the intention of the owner at the time when the attachment was made.

It is therefore important to address this issue in the offer to purchase and draft a comprehensive list of what is included in the sale. This could save both parties a lot of time and frustration.

The following is a list of items that are usually considered to be permanent fixtures:

Built-in extractor fans; built-in kitchen cupboards; fitted bookshelves; fitted curtain rails; wall mirrors; stoves; existing garden, trees, shrubs, plants; pool filter, pool pump and pool cleaning equipment; fitted carpets; light fittings; towel racks; tap fittings; tennis court net; fireplace; awnings; post box;  alarm system; television aerial (but not satellite dishes) and door keys.

Some estate agents have amended their fixtures and fittings clause since the CPA came into operation, to read as follows: “The property is sold with all fixtures and fittings, including the following … which shall be in good working order on date of transfer.” The words “in good working order” are a very subjective assessment and opens the door to debate. The effect hereof is that the seller will be seen to have promised that all the fixtures and fittings will be in good working order, and to a large extent it will be eroding the protection of the voetstoots clause. Sellers should therefore take caution when signing the fixtures and fittings clause.

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.

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