The Rental Housing Act forbids ‘unfair’ discrimination by landlords, but this can be tricky to apply. By Bonny Fourie
It’s a common prohibition that many parents and pet owners face when looking for property to rent: “Regret: no pets or children.”
It seems even those with house-trained pets or children they claim are well-behaved or past the noisy or destructive age are excluded by these non-negotiable conditions.
Many believe that property owners, who are ultimately investing in and protecting their assets, should have the right to decide who they rent to and the basis on which they make these choices, but some parents feel slighted by landlords who refuse to accommodate tenants with children.
Furthermore, prohibiting tenants with children without good reason is deemed illegal, although this does seem to be a grey area as far as real estate and legal professionals are concerned. After all, what is deemed as “unfair” or “fair” discrimination is open to interpretation.
“If a landlord has a seventh floor property with a balcony, he may deem it unsafe for children, and that could be a fair reason to prohibit children,” says Marina Constas, a specialist sectional title and community schemes attorney and director at BBM Law.
The Rental Housing Act states, when advertising a property for rent or negotiating leases with prospective tenants, a landlord “may not unfairly discriminate” against prospective tenants or their households based on their race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.
However, discrimination based on age is also not as easily proven as prejudice based on gender, sexual orientation, or race, Constas says. She does not know of any cases regarding alleged unfair discrimination based on age that have proceeded to court, and does not believe a court would limit a landlord’s right to choose who he rents to.
“The right to own a property is a real right, it is a proprietary right. So if a landlord has a pristine property with new flooring and does not want children living in it, he has the right to deny tenants with children”, she says, acknowledging however, that it is “quite tricky” when viewed in light of the act.
A rental property is first and foremost an investment and landlords aspire to take on the least possible risk, says TPN managing director Michelle Dickens. As such, each individual case needs to be considered on its own merits.
“Landlords may discourage tenants with children in the case of a mature estate where noise levels are controlled by strict body corporate rules.” She says some other reasons landlords do not want to rent to tenants with children or pets include potential damage to property or the garden. While not common practice, there are specific instances in which landlords are adamant about not letting to tenants with children, Constas says.
In cases where this clause is stipulated, she explains there is a perception, right or wrong, that children may create additional complications in a community scheme. The main complaints revolve around noise nuisance.
“Children who are unsupervised can create a problem on common property, or may be a danger to motorists within the scheme if they ride their bikes or skateboards. “In one of the complexes I acted for, the tenants’ children went to each car in the carports and placed sand in the petrol tanks of the car. In another one, more recently, children set the clothes on the washing lines on fire for fun.”
A landlord may also apply his discretion when allowing or disallowing pets, Dickens says. “An apartment in a pet-friendly complex could easily accommodate a small dog but where a tenant has two border collies that are active dogs in need of ample space, a landlord may view that particular applicant as a higher risk because of the potential damage to a small garden.”
She adds: “An issue that often occurs is that a body corporate disallows pets which the landlord then has no choice but to apply as a rule when finding a suitable tenant.”
In community schemes issues around pets are the most emotive, Constas says. “Landlords are bound by the rules of the scheme. If the rules state that pets are not permitted in a particular scheme, the landlords would in fact be obligated to insert that clause into the lease,” she says.
“Pets can pose a nuisance to other owners in a complex. The type of nuisance can vary from excessive barking of dogs to cats that slip into other units and spray all over the furniture. We have had cases of squawking parrots and a bulldog that owners demanded be debarked. We have also seen cats scratching motor vehicles and dogs running freely around common property, traumatising residents.”
Owners who fail to clean up after their dogs when taking them on a walk through the common property gardens also provoke ire. “On more rare occasions we have seen snakes escaping from their cages and disappearing into common property pipes.”