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Remote workers: Can landlords legally limit the amount of days tenants work from home?Disputes between landlords and tenants in South Africa regularly arise over issues such as unpaid rent, lease agreement breaches, property maintenance and eviction processes. These conflicts are governed by the Rental Housing Act 50 of 1999 (the Act) and managed by the Rental Housing Tribunal, which offers mediation and dispute resolution services. ![]() Image source: Vlada Karpovich from Pexels These disputes can also be addressed in Court, where the Court reviews the evidence from both parties, hears testimonies and makes a binding decision based on the relevant laws and regulations. The decision to take a rental dispute to the Rental Housing Tribunal or Court is at the discretion of the complainant. In the event that a landlord imposes a restriction on a tenant (in their lease agreements) by placing a limitation on the number of days a tenant can work from the leased premises, then several legal considerations must be taken into account when drafting and enforcing such restrictions. Balance of rightsThere must be consideration of the relevant laws such as constitutional rights of the parties and municipal regulations. The Act is the primary legislation governing the relationship between the landlords and tenants in South Africa. The preamble of the Act states, “there is a need to balance the rights of tenants and landlords and to create mechanisms to protect both tenants and landlords against unfair practices and exploitation”. Although the Act allows landlords to include reasonable provisions in the lease agreement, it prevents landlords from imposing restrictions that are unfair and unlawful. The Act does not explicitly define what constitutes a reasonable restriction, but the general understanding is that the restriction must not be unduly restrictive. While the landlord has the legal right to impose restrictions, the restrictions cannot infringe on the tenant’s constitutional rights as enshrined in the Bill of Rights (of the Constitution of the Republic of South Africa, 1996). Relevant rights that may be impacted by restrictions on working from home include:
If the tenant’s work activities comply with these regulations, the landlord may have limited grounds to impose additional restrictions, such as limiting the number of days the tenant can work from home. However, if the tenant’s activities violate zoning or municipal regulations, or violate other tenant’s rights on the premises, the landlord may be justified in imposing stricter restrictions or prohibiting the activity altogether. It is noteworthy that a landlord cannot impose a restrictive term on a tenant with an existing lease agreement without the tenant’s consent. Considerations for restrictionsWhen considering imposing a restriction on the number of days a tenant can work from home in application of the principles indicated in the Act, the following must be considered:
In the premises, when drafting a lease agreement, a landlord must ensure that if he/she imposes restrictions on a tenant, such restrictions are reasonable and proportionate. These restrictions cannot be applied randomly to all tenants, and each tenant’s situation must be carefully considered. It is a situation where “one size shoe will not fit all”. Right to challenge restrictionsShould the landlord impose a restriction without consideration, the tenant has the right to challenge its validity at the Rental Housing Tribunal or at Court. If the Rental Housing Tribunal or the Court find the restriction unreasonable, such restriction shall be severed from the lease agreement and will no longer be valid or binding on the tenant. Remote working allows employees to perform their duties from a location outside the office environment, usually at home. This arrangement offers flexibility and reduces travelling time and can improve work-life balance. Covid-19 has changed employers’ attitudes towards remote work, making it more widely accepted in certain circumstances. Since the end of the pandemic, some employees have not returned to the office fulltime, meeting there only when necessary. Remote working for many professions may be seen as a glimpse into the future. About the authorTafadzwa Zhanda is a Senior Associate and Vinolia Mashego is a Candidate Attorney, both are in the Litigation and Dispute Resolution Department at Gwina Attorneys Incorporated (GAI). |