Frequently Asked Questions - Landlords and Tenants during the COVID-19 Lockdown
Frequently Asked Questions of landlords renting out residential property to tenants during the COVID-19 Lockdown.
1. Is a tenant obliged to pay rental for the period of the lockdown?
Generally, yes. A tenant is usually expected to pay rental and comply with his/her obligations in terms of the lease agreement for as long as he/she is in occupation of the leased premises, unless he/she can demonstrate that he/she was directly affected by the lockdown and accordingly does not have beneficial occupation of the leased premises.
2. Can a landlord evict a tenant during the period of lockdown?
No. Government Gazette No: 43167 dated 26 March 2020 makes it clear that “all evictions and execution of attachment orders, both movable and immovable, including the removal of movable assets and sales in execution is suspended with immediate effect for the duration of the lockdown.”
The amended Regulations issued in terms of section 27(2) of the Disaster Management Act dated 16 April 2020 [Regulation 11CA] states that “no person may be evicted from their place of residence, regardless of whether it is a formal or informal residence or a farm dwelling for the duration of the lockdown.”
This means that even a landlord who is in possession of a Court Order authorizing the eviction of a tenant or the sale in execution of a tenant’s property may not lawfully proceed with such action.
3. Can a landlord terminate services during the period of lockdown?
No. Irrespective of the lockdown, a landlord is not entitled to terminate services without a Court Order. As a landlord will not be able to obtain such an Order during the period of lockdown, any termination of services will be unlawful.
4. What can a tenant do should he/she become unemployed as a result of Covid-19?
Primarily, a tenant should enter into discussions with his/her landlord in order to resolve the matter. A tenant may also approach the relevant authorities for a grant should he/she qualify for State assistance. Should this fail, the tenant may approach the Rental Housing Tribunal and request a reduction in rental. Please note that a tenant is not automatically entitled to a reduction in rental and the Tribunal will consider each case on its merits before making an appropriate decision.
5. Is a tenant obliged to furnish a landlord with personal information that has been requested?
Yes. The tenant will be expected to negotiate in good faith and furnish the landlord with all relevant information in order for the landlord to consider his/her request. This information must also be furnished to the Tribunal on request.
6. Can a tenant be blacklisted with a credit bureau for failing to pay rent during this time?
Generally, yes. However, the landlord is obliged to follow the breach process either in terms of the Consumer Protection Act, the Rental Housing Act or the lease agreement before reporting the default to the credit bureau. The breach notice may only be issued after the lockdown has ended.
7. Can a landlord or tenant terminate a lease agreement during the period of lockdown?
No legal proceedings or termination notices may be issued during the period of lockdown by either the landlord or tenant. Neither party may engage in “threatening” behaviour to the other.
8. Can a landlord insist on conducting an inspection or entering the premises during the period of lockdown?
No, this would contravene social distancing rules and violate the “stay at home” principle.
9. What is the position if a lease agreement expires during the period of lockdown?
The lease agreement will continue on a month-to-month basis until the lockdown has been ended. The tenant will be liable for payment of all rental and utilities during this period.
10. Is the landlord liable to maintain the premises during the period of lockdown?
The landlord will be liable for urgent maintenance such as a burst geyser. If workmen are required to enter the premises then social distancing rules and PPE clothing and equipment must be provided by the landlord to the workmen. The tenant is responsible for his/her and the other occupants’ safety requirements.
11. Can a landlord use a tenant’s deposit toward the arrears during the period of lockdown?
Using a tenant's deposit to settle outstanding rent is unlawful during the lockdown. Parties should look at the lease agreement and relevant legislation to consider the position after the lockdown.
12. Is a landlord obliged to return a tenant’s deposit during the period of lockdown?
Yes. The deposit and the interest accrued thereon must be refunded to the tenant if the joint exit inspection has been carried out and there is no dispute regarding damages (including arrear rent and service charges) between the parties. The Rental Housing Act requires the deposit to be refunded within 14 days after the joint exit inspection has taken place.
13. Are Rental Housing Tribunal cases being heard under lockdown?
No, RHT cases are not currently being heard under lockdown.
14. Is a tenant allowed to move to a new residence under Level 4?
Yes. Per revised regulations, citizens may move residence and require a permit from SAPS in order to do so.
IMPORTANT POINTS TO NOTE
- It is important for a tenant to communicate with a landlord if the tenant’s ability to pay rent has been impacted by the Covid-19 virus and the lockdown;
- South African law makes provision for unforeseen events out of the reasonable control of both the tenant and the landlord i.e. because of force majeure but each matter must be considered on its own merits.
- THERE IS NO BLANKET RULE THAT A TENANT WILL AUTOMATICALLY BE ABSOLVED FROM THE OBLIGATION TO PAY RENT and Landlords are still entitled to demand rental payment from residential tenants;
- A tenant is not allowed to vacate the property, whether it is voluntary or by an eviction order;
- Eviction orders are suspended during the period of lockdown
- Tenants cannot be sued, because landlords cannot issue legal processes during the lockdown. This does not change the fact that tenants are still obliged to pay rent.
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Rental Housing Tribunal Contact Information:
Contact details for enquiries
For any queries, please contact the Western Cape Rental Housing Tribunal
Monday to Friday from 08h00 till 16h00
Tel: Mr Nkosana Vaveki – 061 527 0878
For all general enquiries
For dispute related enquiries