Level 2 Lockdown: New Rules For Landlords & Tenants

To regulate our behaviour under Level 2 of our lockdown, chapter 5 was added to the current lockdown regulations on 16 August 2020. Sections 53 and 54 in this new chapter, dealing with "Eviction" and "Rental Housing", makes for interesting reading.

We all know that the Rental Housing Act governs residential leasing in South Africa, and that the Rental Housing Tribunals have been established in terms if this law. We should also know that there are regulations that have been published under the Rental Housing Act to outlaw unfair practices. These Unfair Practice Regulations have now been supplemented by the Level 2 Regulations.

In section 53 of the new lockdown regulations, the rules for evictions have been amended again. A court now has the power to suspend or stay an order for eviction after considering the impact of the order on the tenant, how the State of Disaster has affected them, the relative prejudice to the parties, and also whether the landlord "has taken all reasonable steps in good faith to make alternative arrangements" including payment arrangements, to avoid the eviction.

The new lockdown regulation also states that eviction orders will not be able to be acted on until after the state of disaster, unless there are exceptional circumstances.

In section 54 of the new lockdown regulations, the duty of the landlord to ensure the leased premises are supplied with basic services has been emphasised. It is now a deemed unfair practice if the services to the leased premises are terminated without the tenant first being given notice, and an opportunity to make representations. It is also a deemed unfair practice for a landlord not to make arrangements to reach an agreement regarding alternative payment arrangements, so as to make provision for the ongoing provision of basic services to the leased premises.

This regulation seems to place a duty on the landlord to negotiate not only with the tenant regarding the payment for services, but also with the municipality, in circumstances where the Landlord is also unable to pay the bills.

Section 54 goes on to provide that, if the tenant falls onto arrears as a result of the disaster, landlords are not allowed to levy any penalty, apart from interest, in respect of these late payments.

Most notably, in terms of section 54, it is now deemed to be an unfair practice if a landlord fails "to engage reasonably and in good faith" to make arrangements for the effects of the disaster, or if the landlord acts unreasonably or oppressively having regard to the prevailing circumstances. This regulation again emphasizes the obligation on the landlord to enter into negotiations regarding rental payments, either to negotiate a reduction of the rent or to agree on payment holidays.

The message here is clear. Landlords need to act sympathetically towards tenants whose ability to perform in terms of their leases has been negatively affected by the disaster, and they need to actively engage with tenants before attempting to enforce their rights. (Landlords should also retain records of these attempts so that these negotiations can be proved in court). The irony of the matter however lies in the fact that it is not the illness that has caused the economic meltdown that has destroyed the livelihood of many tenants, but rather the same regulations that the government now attempts to use to ameliorate their plight.

Also in section 54, the authority of the Rental Housing Tribunal has been extended to enable it to grant urgent orders to restore possession of rental premises to tenants who have been unlawfully evicted, or to restore services to a premises where they have been cut off, without first affording the Landlord the opportunity to be heard. Previously this authority to grant orders restoring possession was vested only in the courts. The Landlord against whom such an order is made can then convene a hearing of the Tribunal, on 24 hours' notice, to give their side of the story.

Interesting times indeed.