Some may argue that it hasn’t been that way for a while, some delight in an end to the days of the Laird and the serfs. So let’s look at a current court case, a proposed new bill and an eight year old Constitutional Court judgement.

Currently the case of Maphango and 17 Others v Aengus Lifestyle is before the Gauteng Rental Housing Tribunal after having been before the Constitutional Court. The case involves the Prevention of Illegal Eviction from an Unlawful Occupation of Land Act. It is an act of Parliament which came into effect on June 5, 1998, and which sets out to prevent, among other things, arbitrary evictions.

Briefly put: Aengus Lifestyle properties bought a rundown block of flats in Braamfontein with the view to renovating it. This isn’t a slumlord at work here but a legitimate developer. In the process, Aengus has chosen not to renew tenants’ leases as they expire. This way the building would empty in time, renovating the units as they became empty. It also means that Aengus can charge higher rentals in line with other renovated buildings in the area. This has been a common practice in the renewal movement of inner city Johannesburg and around the world.

As it turns out the Constitutional Court handed down judgement on the 13 March 2012 but was a somewhat deflated one. In a majority judgment written by Justice Cameron, the Court found that that the High Court and SCA failed to give adequate weight to the Rental Housing Act and that the landlord’s conduct may have amounted to an “unfair practice”. The Rental Housing Tribunal is empowered to determine whether a landlord committed an unfair practice, and it might accordingly have ruled in the tenants’ favour. The applicants are therefore directed to lodge a complaint with the Gauteng Rental Housing Tribunal before 2 May 2012. On 2 May 2012, the complaint to the Tribunal was filed and we all wait with baited breath as to the outcome.

Then there’s the proposed Rental Housing Bill. The public was invited to respond to the re-drafted Rental Housing Bill that was introduced on October 28, 2011, in the National Assembly. Submissions were closed on the April 5, 2012.

The bill intends to regulate the relationship between landlords and penurious tenants as well as government.  Of note is the fourth chapter of the bill laying out what is referred to as Rental Housing Tribunals. These are essentially tasked with mediating on matters arising between landlords and tenants. The tribunals will have the jurisdiction in matters relating to: lack of maintenance; exploitive rentals; overcrowding and unacceptable living conditions.

The bill will no doubt have to be tested by cases as they surface but it is certain the relationship between landlord and tenant will change considerably.

Which brings us to some new attention to a 2004 Constitutional Court judgement. Many a landlord’s heart sank on the day that Mkontwana v Nelson Mandela Municipality made its movement through the Constitutional Court back in 2004. The knock-on effect for both residential and commercial landlords was and is far reaching.

Jason Lee of Rawson Property group has, among others, expressed a need to review 'the situation' “especially in the current scenario where tenants are increasingly finding it difficult to pay both their rentals and their utilities accounts” he announces on the Rawson Website.

For clarity: the outcome of the aforementioned case was that the landlord became responsible for all municipality service debts incurred by the tenant. The burden now rests with landlords for all water and electricity utilities run up by the occupant.

On the other hand landlords are not permitted to withhold water and electricity utilities from defaulting tenants. Sewage services and rubbish removal also remain in place regardless of what is owed.

The question raised is whether this burden on landlords and banks is too much to bear. The risk with 'tenants from hell' is enormous.  In the event of selling a property a rates clearance certificate is mandatory before a transfer is processed.

Given the current law the best landlords can do is to work very hard on background checks, demanding lengthy histories from tenants with impeccable references. In addition to this tenants will have to come up with several months in utilities and rental deposits. 

How this will be 'reviewed' as Lee puts it, is another matter. Watch this space.

There’s no doubt that being a landlord these days requires a very skilled tight-rope walk, delicately executed. Oh and don’t forget the net.