While South African laws do protect renters with disabilities from evictions, Cilna Steyn urges renters to disclose their disability in the rental agreement
The right of occupation is important when discussing rental property. There are two seemingly similar, and yet, not equal rights when dealing with immoveable properties: the right of ownership; and the right of occupation.
The right of ownership is a complex and complete real right, meaning, this right attaches to a thing. It is a collection of different rights which includes the right to sell the property; use as security for a loan; and to occupy.
Trading with the right of occupation can take on many forms. The most popular is renting. To qualify, a lease agreement must comply with the following:
- It must be temporary;
- The tenant must have undisturbed use and enjoyment of the property; and
- The tenant must pay rent.
The agreement doesn’t have to be in writing to be enforceable, although it is highly recommended. The law provides a few very specific rights to protect a tenant or occupant with a disability. However, many times it would be up to the tenant to enforce these rights.
There is no obligation for a landlord to provide a property that is wheelchair accessible. However, if this is a needed, the landlord is aware, agrees, and such terms are then recorded in the lease agreement, the landlord’s failure to comply with these terms will amount to breach of the lease agreement.
This will allow the tenant to utilise a few available remedies in law. They can compel the landlord to comply with the agreed terms. If the landlord fails to comply, the tenant has the right to cancel the lease agreement and claim damages.
Renters are also protected under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. As described in Section 4 of the Act, there are four groups of people who have a higher level of protection against eviction. This includes the elderly, minor children, women-headed households and people with disabilities.
Recording a tenant’s disability in as much detail as possible is beneficial. In the unfortunate event of an eviction, the court must be informed of all the occupants residing in the property and their personal circumstances, which will include details of the above-mentioned equity groups.
If this information is already recorded in a lot of detail in the lease agreement, it would be close to impossible for a presiding officer to be unaware of vulnerable people who need to be evicted from the property.
Once the court is aware of these personal circumstances, it needs to determine a time period during which the illegal occupant must vacate the premises that is just and equitable.
This position was founded and established in terms of Section 26 of the Constitution Act 108 of 1996, which determines that no person may be evicted unless a court orders such eviction, and only after the court had the opportunity to consider the personal circumstances of all illegal occupants.
Our rental laws do offer protection for tenants with disabilities, but it is essential that the details of the disability and the resulting agreement between the parties or requirements in law are recorded in full and in detail within the lease agreement.
