Lease Agreements And The RHA
The Rental Housing Act (RHA) bears specific reference to the termination of the lease agreement.
Section 5(5) of the Act states:
If on expiration of the lease the tenant remains in the dwelling with the express or tacit consent of the landlord, the parties are deemed in the absence of a further written lease, to have entered into a periodic lease, on the same terms and conditions as the expired lease, except that at least one month’s written notice must be given of the intention of either party to terminate the lease.
The lease agreement is terminated by effluxion of time, unless the tenant remains in the property and the landlord continues to accept rental payments. In which case, termination of the lease agreement is effected by either party, giving the other one months’ notice of the termination of the lease.
The RHA establishes the Rental Housing Tribunal. The RHA gives the tribunal extensive powers to set aside rentals that are found to be “exploitative” and to replace them with rentals that are considered to be fair and equitable. The Tribunal is empowered to rule that unpaid rental can be recovered and now also has the power to issue spoliation orders, attachment orders and interdicts. A ruling of a Tribunal is deemed to be an order of a Magistrates’ Court and is enforced by the Magistrates’ Court Act. Although a Magistrates’ Court may grant evictions, the Tribunal is, however, not empowered to grant eviction orders. An eviction can only be obtained by a court order. In view of this, it is crucial not to approach the Tribunal in an attempt to obtain an eviction order.
The Tribunal may only determine a dispute relating to an unfair practise of proceedings not commenced in a court of law. Although it can be helpful in certain cases to refer the matter to mediation or the tribunal, it should be borne in mind that instituting a complaint in the Tribunal stays all legal proceedings for a certain amount of time as per Section 13(7).
Section 13(7) states the following:
(7) As from the date of any complaint having been lodged with the Tribunal, until the Tribunal has made a ruling on the matter or a period of three months has elapsed, whichever is the earlier:-
(a) the landlord may not evict any tenant, subject to paragraph (b);
(b) the tenant must continue to pay the rental payable in respect of that dwelling as applicable prior to the complaint or, if there has been an escalation prior to such complaint, the amount payable immediately prior to such escalation; and
(c) the landlord must effect necessary maintenance.
Once a complaint has been lodged in the Housing Tribunal, a moratorium is placed on all legal proceedings until the matter is resolved or until 3 months have lapsed, whichever is the earlier. The regulations however require a Tribunal to determine whether a dispute actually exists within 30 days of the complaint.
Furthermore, the RHA obliges the landlord of a residential property to reduce the terms of the lease to writing if requested to do so by the tenant.
(Extract from The Landlord’s Guide)
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