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Wednesday Dec 04, 2013

Renting property from the state

What are the rights of a tenant living in a dwelling owned by the government - whether national, provincial or local? Is there a difference between a private landlord and the government in respect of a residential tenancy?

Rights do not exist without responsibilities, so the question may be rephrased as: 'What rights does the government have regarding a tenant?'
The laws and legal principles that regulate the relationship between a tenant and a private landlord also govern the relationship between a tenant and the state as the landlord.

The Rental Housing Act, the Consumer Protection Act, the common law and other relevant legislation come into operation once a lease agreement is concluded.

The Rental Housing Act, 50 of 1999, refers to the government's responsibility to create mechanisms to promote the provision of rental housing and to promote access to adequate housing.

Does this mean a tenant can refuse to discharge his or her responsibilities to the government as a landlord since it is obliged to provide access to housing? Or can the government abandon its duties as a landlord once it has housed a tenant? A lease agreement - oral or written - concluded by the government and a tenant places the parties on the same footing as a private lease.

In this tenant-government/ landlord relationship, either party can lodge a complaint with the provincial Rental Housing Tribunal to terminate an unfair practice.

The government can claim arrear rentals through the tribunal, or obtain a ruling to stop overcrowding.

An aggrieved tenant can approach the tribunal to compel the government to carry out repairs or to maintain the dwelling.

The parties can also exercise their common-law rights or follow legal guidelines laid down by the courts.

Should the government fail or refuse to carry out necessary repairs, the tenant can place the landlord on terms.

A letter or notice should give a 14-day period for the landlord to do the repairs.

If the landlord refuses or fails to respond, the tenant can attend to the repairs himself and deduct the costs of such repairs from the rental, or claim a reduction in rental through the tribunal.

The tenant can claim a deposit refund through the tribunal or the courts. The tenant, however, cannot institute action against the state (landlord) in the Small Claims Court.

What happens to the relationship if the tenant buys the dwelling from the state?
Parties would enter into a contract by concluding a purchase and sales agreement.

The tenant becomes the buyer/owner and the state (the landlord) is the seller.

Conditions of sale
A deed of sale is registered with the Registrar of Deeds office, which is proof that the buyer has a legal title to the dwelling.

The buyer of a state dwelling is bound to the deed of sale that usually contains certain 'restrictive' conditions.

One such clause relates to the buyer, who must occupy the dwelling herself/himself for a specific period (e.g. five years).

The agreement may contain the phrase... 'shall not without the written consent' followed by the restriction.

The buyer shall not without written consent allow another person to occupy the dwelling or any portion thereof as a tenant or sub-tenant. Another condition states that the buyer shall not own or occupy any other dwelling.

The seller has the right to cancel the agreement, evict the buyer and occupiers and take possession of the dwelling should the buyer breach any condition.

To do this, the state will have to follow the procedure for breach and institute legal proceedings to evict the occupier who refuses to move out.

The parties in this instance, where the dispute relates to ownership, cannot lodge a complaint with the provincial Rental Housing Tribunal that deals with the tenant-landlord relationship.

The shift from tenant to owner in a multi-storey building may result in the state retaining ownership of some flats.

This would also require a mental shift on the part of officials to recognise and respect the new owners (who were tenants previously) on an equal footing.

Sayed Iqbal Mohamed
Chairman, Organisation of Civic Rights
Tenant Issues
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