Rental housing as adequate housing

Maass, Sue-Mari (2011-09)

CITATION: Maass, S-M. 2011. Rental housing as adequate housing. Stellenbosch Law Review = Stellenbosch Regstydskrif 22(3):759-774.

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Recently the government has emphasised the importance of rental housing as a form of housing accessible to the urban poor. The current landlord-tenant regime promotes equal bargaining power and contract-based tenure (occupation) rights for tenants. It is questionable whether this free-market approach would provide satisfactory tenure security for the urban poor. In terms of section 26 of the Constitution, the state must be actively involved in the provision of housing and the state must assist the most vulnerable who face homelessness. Public rental housing might be a suitable housing option for vulnerable occupiers because the state can regulate, assess and control the market to the extent that it is involved in the provision thereof. The success of such a form of housing depends on the enactment of effective legislation that affords tenure security while also being context-sensitive to the personal needs of the individual households. The purpose of the Community Residential Units Programme is to introduce a formal public rental sector. However, the tenure rights of these public sector tenants would be similar to those of private and social sector tenants, which is problematic since these tenancies are based on contract. Legislation has not been promulgated to give effect to this programme. If the aim of the government is to provide housing in the form of rental housing, the question is how such housing would constitute adequate housing. Security of tenure is a key component of the right to adequate housing. One of the challenges in urban land reform is to create statutory forms of tenure that would include substantive tenure security, although such protection should be extended and applied to a diverse variety of tenure options. Security of tenure implies uninterrupted legal occupation devoid of uncertainty regarding termination of such legal occupation.

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