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 free standing, 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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