How does the Consumer Protection Act affect letting?

Private Property South Africa
Private Property Reporter

According to the Consumer Protection Act, what are my rights as a landlord, and what are my tenant's rights?

The law has changed in that it's given consumers quite a number of rights that landlords are unaware of. The consumer protection act does govern rental contracts, so that provision of accommodation, even just a provision of accommodation, is seen as a service. Having a tenant with the rental contract on arrangement clearly falls within the ambit of the act. So this will give the tenant rights in certain instances that you need to be aware of as a landlord.

Tenants can cancel the lease, if they give you 20 days notice. Of course, as a landlord, you're entitled to get some compensation for damages for the early termination of the contract. That said, you can't just sit back and claim as much as you like. There is a principle in our law called the mitigation of damages principle, so you should to go and attempt to get a new tenant and not from any sort of crazy turns by holding the tenant liable or the owing balance. You go out, get a tenant, the person who's giving you early notification, they will then be liable to you for damages, which you'll have to calculate and, obviously, recover from it. Hopefully, you'll have a deposit that is sufficient. If you don't, you may have to bring legal action to restore the premises, to get your damages for the early cancellation, et. cetera.

A major issue for you to consider as a landlord is Section 61 of the Act, which deals with strict liability. In the past, before the introduction of this piece of legislation, somebody would have to prove negligence on your part as a landlord in order to claim damages from you. The new Act says that the provisional goods or services - which renting of an accommodation is - basically the fact that you've provided the rental space or the premises will make you liable whether you are negligent or not. So in the past, your tenant, if they were injured or suffered some form of damages, would have to bring an action and show that you were negligent to be successful in a claim. That's gone out the window. You're in a position now where under the strict liability principal, you can be sued for any type of damage. Which can be huge, specifically if there's injuries or possibly improbable death or something to that effect, so it can be quite a huge claim you may be facing. To secure yourself, of course, you'd be prudent to take insurance but the insurance doesn't always pay out. There could be repudiation events, there could be scenarios on your part that will render you liable, so be very cautious.

As a landlord, we strongly advise that in your lease agreement, whether you're doing it yourself or whether you're getting an agent or managing person to handle that, ensure that you have your lease drawn up in plain and simple English. You can indemnify yourself. The law, however, says that you've got to be very specific in informing the tenant of exactly what they indemnifying you from, or them from. You've got to insure that that is very clear and it sets out what the tenant is indemnifying you from. Gone are the old blanket indemnity clauses, you've got to be much more specific now. Just ensure that your indemnity is as comprehensive as possible. It may come to your aid in the event that there is a claim.

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