How many people can legally live in one room?

A tenant walks into your offices with a view to renting a unit for himself and his family. His credit record is exemplary, and you just know that he will be a model tenant.

There is only one problem though! His budget cannot stretch beyond a two bedroom unit in the area where he wants to reside. His family consists of his wife, his mother, his twin teenage sons, his 6-year-old daughter and his two-month-old baby.

Can seven people really legally inhabit a two bedroom property? Do you have a right or a duty to advise him of the maximum occupancy laws or rules that apply in the area in question and, if so, where do you look for guidance in this regard?

No real guidance in terms of rental law

In South Africa, this is one area in the rental industry where the legislature has left landlords and agents completely in the dark. Whilst the Occupational Health and Safety Act does provide some guidance for commercial properties, there is no legislation dealing specifically with the issue of maximum occupancy in respect of residential properties. Even municipal by-laws rarely address this issue.

Body Corporate Rules often contain a maximum occupancy clause, but the position will vary from complex to complex and is not standardised. From a health and safety (not to mention wear and tear) perspective, determining maximum occupancy is a really pressing issue.

How do you determine reasonable maximum occupancy?

So what factors should one take into account when determining a reasonable maximum occupancy for a specific property? The most obvious factor to consider is the actual size of the property including how many bedrooms make up the property, the layout of the property and the total square meterage.

There is no set formula for determining how many people can stay in a property of a given size, however when it comes to the number of bedrooms, the general rule of thumb is that one bedroom can accommodate a maximum of two people. A two bedroom unit would generally be deemed to be able to accommodate four permanent occupants.

This rule is open to interpretation though. Layout can be an important factor to consider because it may be that a property only contains two bedrooms, but there may be an additional space that could ultimately be utilised as a third bedroom, such as a study or play area. In units that are small and open plan, this would obviously be more difficult to determine.

Another factor to take into consideration is the age of the potential occupants. Infants and small children obviously take up less space than adults. Where minor dependants are going to occupy the premises, the rules regarding maximum occupancy may differ slightly from the norm.  

The final factor to take into consideration is the actual physical limitation of the property in question. Included in this factor would be considerations such as the location of the property, in other words, is it high up in a block of flats (which presents more of a danger insofar as fire hazards are concerned) or freestanding, the number of bathrooms included in the property and the nature of the plumbing and sewerage facilities available.

Are landlords protected?

There are no formal legal guidelines governing the rules around maximum occupancy of residential properties in South Africa. In the absence of a Body Corporate conduct rule regulating the property, a landlord or agent needs to use his or her discretion and judge each property on a case by case basis.

It is imperative that a lease agreement clearly stipulates the maximum number of occupants that are allowed to inhabit a property as the TPN Residential LeasePack Agreement does, so that in the event that tenants breach this clause, they can be placed on terms.

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