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Landlords and tenants: What you should know about the Consumer Protection Act.

The Consumer Protection Act has been in effect for a month and a half now and slowly but surely the public are coming to grips with what the CPA does and does not protect as they encounter various situations provided for under the CPA.

We have had a steady stream of questions around how the CPA affects the property sector especially with regard to landlords and tenants, so we have compiled a quick reference guide for your perusal.

Firstly, it must be understood that a rental agreement of any nature is in essence a service as far as the CPA is concerned. That is to say that the landlord is supplying the tenant with the service of the house/office/flat etc. for which the tenant pays an agreed sum for that service. The CPA exists to regulate the supply and/or promotion of goods and services to South African consumers. Every single lease drawn up after April 1, 2011 must comply with the CPA, so you would do well to heed this advice before entering into any agreement going forward.

The contract of the lease must be written in plain language, avoiding complicated and misleading jargon. The contract must be understandable to a person with average literacy skills so that they may fully understand what they are signing. If they do no understand what is written, it must be explained in clear and simple terms. This will get tricky in South Africa, what with us having 11 official languages. This clause implies that the contract should be translated in the language the tenant is fluent in, if it is not the same language as the landlord.

The tenant must be made fully aware of any provision in the contract that transfers risk away from the landlord and onto the tenant. Tennants must be made aware of any risk they undertake at the time of signing and these risks must be acknowledged by the tenant.

Clauses exempting landlords from liability to repair damaged premises due to negligence on the landlords part must be specifically drawn to the attention of the tenant. Such provisions must be in bold and the tenant must sign next to such provisions.

Generally speaking, and as obvious as it sounds, the contract cannot may not contain any clauses or provisions that defeat the ends of the CPA. In the spirit of the CPA, contracts may not be stacked in favour of either party but must be substantively fair. The CPA exists to bring balance and equality in the consumer market and where blatant discrimination occurs with those that possess the power (usually landlords) over those that don’t (usually the tenants) the CPA provides the safety net of legal recourse.

One of the biggest outcries of landlords has been the regulation of contract lengths and renewals. The maximum period of a fixed-term contract has been reduced to two years. There is one exception however, where the landlord can demonstrate that a longer term contract is of greater financial benefit to the tenant. What exactly that benefit should look like whilst still remaining fair to both parties is a subject of debate.

Much like in the case of cell-phone and gym contracts, it is the legal obligation of the landlord to provide notice of the termination of the lease even if the contract is reaching it’s full course on the agreed upon dates. The landlord must provide written notice at least 60 days before termination of a lease. On the flipside, the tenant may at any point cancel the lease giving only 20 business days notice. A landlord may not provide a clause in the lease to exempt them from this risk, it is now every tenant’s legal right. The tenant is still obligated to pay any outstanding amounts owed up to the end of that cancellation period and the landlord may impose a reasonable cancellation penalty. The jury is out as to whether a reasonable cancellation penalty will be comparable to the damages that landlords were previously entitled to recover in such circumstances.

If a landlord decides to take a chance and avoid inclusion of the rights afforded under the CPA especially in these early days when not all consumers may be aware of their rights, they should be aware that they then run the risk of the lease being declared void and unenforceable in smaller cases. For larger cases, failure to comply with the CPA may result in a fine or imprisonment of up to 1 year, or both.

For a glossary of simplified rental terms, view this helpful post by Property 24, and begin your process of CPA compliance or see where you might need to rectify existing contracts.

Leases that were drawn up and signed before 1 April 2011 are still subject, to the CPA, albeit with limited application . If you fear that your existing lease may not be in compliance or you wish to draw up a new contract as a landlord we strongly suggest that you contact your preferred legal advisor in order to ensure compliance with immediate effect.

Gunstons Attorneys

Comments

  1. AHMED says

    Hi,

    My lease agreement says that my lease is not subject to the CPA as it is not the ordinary course of business of the landlord. Is this a reason?

  2. Louise says

    House problems
    I just want to know what is my rights tenant in this case.

    My husband has signed a year lease, but since we’ve moved in here this house had problem. We are only 6 month in this house.

    Roof leaking, we’ve asked many times to fix it, they now did, two weeks ago. But they did not fix the the living room leak and the passage leak. I’ve got mold on my furniture and on my clothes that’s hanging in the cupboards. When you open the cupboard door you can smell the mold. There is mold on the walls, I do wash it off, two days later it’s back.

    There is a gulley/sewage in the back yard and it smells. There is crab and frogs living in it. The frogs came to breed the swimming pool. When it rains the gulley/sewage over flows and the back yard is knee high of the water, so bad my dogs have to sleep inside.

    I’ve giveing the agency our notice, but the owner is unhappy and want to take us to the rental board.

    Please Help.

  3. taryn says

    Does a landlord have a right to withhold deposit if, a verbal agreement was made to allow the tenant to stay an extra month in the flat after the lease has expired. On agreement of the extention the tenant was to pls move out by the 26th of the month. Durong this period the flat was sold to new ownern the tenant was invoiced for full months rent wich was paid but ois now told to vacate a week before last day of the month.

    • Gunstons AdminGunstons Admin says

      Whether this is permissible would depend on the terms of the lease. From your question it seems that everything is in order – the tenant agreed to move out early and pay the full month’s rent. If the tenant complies with his/her obligations the landlord would only be permitted to withhold the deposit for a reason permitted in terms of the lease. For example, normally leases provide that the landlord can withhold the deposit to repair any damage to the property caused by the tenant.

      Garth

  4. Noel Ralfe says

    I heard on Talk Radio 702 about 2 days ago that the Consumer Protection Act provides the tenant with protection only if the tenant dealt through a letting agent and not through the property owner directly. I wonder if this is correct or whether I misunderstood what was being discussed. Could you comment on this. Many thanks.

    • Gunstons AdminGunstons Admin says

      ?Hi Noel, thank you for your question. Unfortunately we cannot give legal advice over our blog. Please feel free to contact us on 021 702 7763 for formal legal advice. Kind regards, Garth

  5. Nalene says

    Our lease period ends January 2012. However we found another place more affordable (as this place is very expensive and we can not afford it anymore as the rent will go up again in January) and we gave notice for the end of December 2011. Almost two months althou our contract says the following:
    4.1 The lease shall be for a fixed period of 6 months commencing on the 01/08/2011 and shall continue thereafter until terminated by either party giving the other party one months written notice of termination.
    4.2 In the event of the tenant not whishing to extend the lease it is agreed that written notice of his intention to do so shall be given on or before 01/01/2012.

    The contract says that we can give one callender months notice and we gave them almost two months notice. We simply can not afford to stay there anymore.
    What can we do?

    • Gunstons AdminGunstons Admin says

      Hi Nalene,

      The only way to get out of your lease is to negotiate with your landlord. Leases are legally binding contracts and one cannot just give notice to call it off; that in itself is a breach of contract and your landlord will have a claim against you if you fail to pay the rental until the end of the lease period. If you would like some formal legal advice please feel free to contact us.

      Garth

  6. Vanessa says

    Our lease expires on 30th November 2011 and the landlord does not want to renew our lease. The Estate Agents dealing with the property (on behalf of the landlord) gave us notice via e-mail, although the lease says that any notice of termination must be delivered to the tenant at the leased premises or his/her place of employment. Do we have to vacate the premises at the end of this month or can we refuse to?

  7. Lerato says

    Hi,
    I have been staying in the building for 6 years. I have put in a notice beacuse I cannot afford the rent anymore. I was in car accident three weeks ago and paid hosipital bills. I asked my landlord extention to my rent by the 15th same month and they are declining. How can I get help?

  8. Adele says

    When I signed my original lease 3 years ago there was a covered parking and it states so in the lease “one covered parking”. Last year the landlord had removed the shade port and construction of the carport without notifying the tenants. When I brought it under his attention that we signed and agreed on a covered parking he merely smirked and said, well it’s gone now. He has also now given notice of the monthly rent being increased by 7%. Is there a way that we can refuse to pay the increase due to the fact that the covered parking has been removed?

  9. leonard says

    To whom it may ever concern:

    I (LEONARD and my partner (GRAHAM) is renting a granny flat in Richards bay no 4 bosvlier with our land lord that is not from south Africa and through just letting in arboretum the flat is on his name Graham Naicker we moved in on the 1st of December before we could move in we paid the full amount of rent R2500, rent+depositR2500+R250, key deposit.R85 for service fee. As we both signed after before she did the inspections for the repairs to be made while we stayed there this was with the landlord and the agent Annelize.

    Annelize got us the place on the December the 1st ,and before I signed the contract, I told her to put a reminder that my work will always pay either on the first or the middle of the week like the 5th she said it was no problem as long as we pay our rent .she took pictures of the place before we even could move in. she told me the shower door will be replaced because it is broken the glass can come out any time soon if we by accidently bump in to it could serious injure me or my partner , the shower door also does not close shut. It is stuck. And the toilet seat to be change. And she also told us that he will put in cupboards for our cloths at this moment our cloths and shoes are lying on the floor next to our bed. The landlord told Annelize in front of us he will do all the above mentioned. Now on Friday I came home and graham told me that there is no hot water. For months we had no hot water and still we pay our rent and why is it that we have to remind him to switch on the hot water. And he give us no communication regarding hot water last month there was no hot water so I asked him to put on the hot water he told me the geyser broke and forgot to tell us so we had cold water and still got sick on top of that and we still paid rent like honest south African citizens like we do. And as I report it to just letting they are giving us lip and not assisting us at all. Who has the right now South Africans or people from another country .just letting us done is in and is treating us like we are the wrongs ones here. Please could someone assist us in this matter due that our own system does not want to help us? a reminder we do not have a problem with the landlord but if we do not get service for what we pay then why are we paying for living like jackals in the buss,. I am so disappointed in this system of just letting and I have proof of the emails they have sent to me daily only emails no action was done on our request.

  10. noelene says

    Hi, We moved into a house on 23 Jan. The lease was signed prior to that. However, the place was left to us in an extremely dirty condition. And the landlord told us he had it cleaned. He lives next door as well as his stepson. When the drain was blocked in the first 2 weeks after we moved in he just told us to deal with it. They play trance music day and night and it is impossible to sleep. We have told him that it is unbearable to live here and that we will be moving out soonest. He has indicated that he will keep most or all of our deposit for no apparent reason and he is demanding that we pay the rent until he finds a suitable tennant. Can we hold onto our last months rent? We are packing up as quickly as we can as it is impossible to live/sleep peacefully.

  11. Ronell Riley says

    Hi we received 1june a letter from the attorney just saying verbal lease cancelled and we must leave the property not later than 30 june no reson and our renT is not in arear can they do that.

  12. adrian says

    Hi, My landlord is not willing to pay back my deposit after they terminated the lease. I gave them 12 days to do so and still nothing.
    What route should I take in getting it back?
    Regards
    Adrian

  13. Elsa says

    Hello I’m Elsa
    My brother and I rented a place from an agency in PTA. We signed for a 2(two) years contract which was supposed to expired in May 2013. In April we decided to leave because the place was to become too expensive. We gave a 2(two)months notice through email. It has been two weeks now that we moved out of the place . We received a email with a breakdown according to which we owned them approximately R9700 and they deducted our R4200 deposit to their so called debt and gave us 7 days to the outstanding amount. What can we do ? We are only students in south Africa .

  14. Ngelo Likuwa says

    What are the provisions in terms of canceling a signed contract but occupation has not taken place as yet? Say one has found a cheaper rental unit at last minute after having signed for another unit higher in rental. Can one be penalized for not taking up occupation? In the meantime the unit is still being advertised on websites, would one be held accountable?

  15. Clementine says

    Hi there

    I have been renting a flat from the owner for the last 3 months now……….I have had a problem at my bank last month when I got paid. money was taken from my bank account without my permission for written off debts from a few years back and I had no control over this.Meaning that most of my salary if not my whole salary was taken from my account and I could not pay my rent. I called the lady that is in charge of the block flats that works for the owner and explained to her that for some reason due to unforeseen circumstance beyond my control I won’t be able to my rent as to what happened but will definitely make a double payment on my next pay date……can she please explain this to the owner and let him know…she said no…I asked her can i get his number then that I can talk to him so she she says no he doesn’t want to hear anything if the money is not paid by the end of today then he will come put me out tonight. he doesn’t want to hear anything he will just put me out tonight……….So I wasn’t given a lease or anything my dad went to meet this woman all the time as i just started a new job and couldn’t get off he says he signed the lease but she didn’t give him a copy of it as she said she needs to take it with her because she needs to make a few changes and this after he signed………..I have requested the lease from her time and time again and she never brought it……

    Now i am just asking them too give me 16 days time to pay the rent that is outstanding and they do not want to hear anything….

    What do I do?

  16. pearl says

    I live alone and place has recently been broken into,. Neighbours claim that break ins are a norm in this complex. When I confronted the landlord he told me I need tobuy security gates if I need them installed. I don’t feel safe in the complex and since my lease ends june 2013. Does the landlord have the right to make me pay rent till then even though my safety is compromised in this place?

  17. samantha says

    My lease is for a period of a year. however, after 2 months, i decided that i cannot continue to afford the costs of living in the apartment and i have given my landlord 37 (not 20) business days notice of my cancellation. clause 29.3 of my agreement states that i may terminate at any time if i give the required 20 days notice and this is subject to a resonable penalty. my landlord has now sent me an email to say that i am not entitled to terminate the lease prior to the 1 year expiry date as i am not protected by the CPA because he as the owner of the unit does not lease the apartment as his normal course of business. thus, he says, clause 29.3 would only apply in the case of a lease under the CPA. he has however stated that he will agree to terminate the lease under the following conditions: 1. i continue to pay rent until he is able to find a new tenant and 2. i must reimburse him for the admin fee of R 4 924.80 which he had to pay the letting agents when they signed me up as his tenant. he says he has sought legal advise and his position is correct. please will you advise in respect of my position.

  18. Jenny van Niekerk says

    I am about to enter into a lease agreement. The Lessor have the following clause in the agreement. I am very concerned that this is one sided to be beneficial to him.
    “The LESSEE will be repsonsible for maintenance, repair and upkeep, as the case may be, of the interior of the PROPERTY including all ceilings, all wall and floor, all doors and windows, all cooking, heating, cooling, lighting, plumbing and airconditioning equipment in or on the PROPERTY.
    Should the LESSEE fail to carry out and for its obligations under this lease with regard to any maintenance, repair, or replacement, the LESSOR shall be entitled, without prejudice to any of its other rights or remedies, to effect the required item of maintenance, repair, or replacement and to recover the cost there of from the LESSEE on demand.”
    Please advise urgently

  19. Reinette says

    Good day, I would like to know if i the tenant withholds a notice months rent due to the concern that the owner of the unit does not have our deposit secured in a separate account or trust, fearing that we will not get our deposit back in which terms may I withheld rent to substitute my deposit to secure next dwelling? No inspection was conducted before we moved in and we upgraded the unit in a live able manor upon moving in. Therefor the owner cannot withheld our deposit due to inspection as there is no ground work to compare the state of the unit. Which will be the legal route to follow regarding our deposit.

  20. Cornelia Ingram says

    I have a real big problem we have a one year contract for the rent of the house we are living in. we have payed our rent promptly every month on the 25th. The contracts has aspired at the end of Sept. 2012 Now our landlord has decided that he wants to move in himself at this property. But our problem is that here in Hoopstad where we live is no other houses flats or townhouses available we dont know what to do. theproblem is that He gives us only one week notice. please give us advice what to do this is very urgent thank you very Much C. Ingram.

  21. Navi says

    Hi

    i have been a tenant of a commercial property for a number of years and due to the recession i was forced to close down business and hence backlog with the rental
    every effort was made to pay the landlord the outstanding rental – ( which is very difficult when you are barely buying foods and paying for basics)
    i have informed them of my situation and am being issued with summonds this is the second time – not sure what i can do as i cannot afford this – the rental is paid up its the matter of the legal cost as well as the interest charged.I have asked for lienancy in this matter – please advise and assist if possible..

    thanks

  22. Dewald says

    Hi, long story short….. Please advice, my family(myself,wife a d 2 small boys 2 a d 3yrs old) signed a lease for 2 years at what was our dream house… 3 weeks after moving in on X-Mas eve at 1am, we were broken into and held up by armed men who assaulted my wife brutally wanted to rape her broke my fingers over a fixed safe that we never had the keys or code too, they then cleaned my house up with all they could take(everything)… My family and i cant live there anymore due to the traumatic experience and have moved to relatives, is there any ways i can get out of the lease? Kindly mail me @ dewaldmulder@gmail.com or 0763395481 please adice.

  23. linda nel says

    I have been forced to sign a 5 year contract with an increase in the depost equal to 3months rent every year the rent goes up. Is this legal? I have also had a problem that because of this clause I am invoiced in excess of the amount and the landlord has taken it upon himself to chain and lock my bussines and notify me of that by a sms to my sellfpone. What can i do about this?

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