Rent Control: A Comparative Analysis

Recent case law shows that vulnerable, previously disadvantaged private sector tenants are currently facing eviction orders – and consequential homelessness – on the basis that their leases have expired. In terms of the case law it is evident that once their leases have expired, these households do not have access to alternative accommodation. In terms of the Constitution, this group of marginalised tenants have a constitutional right of access to adequate housing and a right to occupy land with legally secure tenure. The purpose of this article is to critically analyse a number of legislative interventions, and specifically rent control, that were imposed in various jurisdictions in order to provide strengthened tenure protection for tenants. The rationale for this analysis is to determine whether the current South African landlord-tenant regime is able to provide adequate tenure protection for vulnerable tenants and therefore in the process of transforming in line with the Constitution. The legal construction of rent control was adopted in pre-1994 South Africa, England and New York City to provide substantive tenure protection for tenants during housing shortages. These statutory interventions in the different private rental markets were justified on the basis that there was a general need to protect tenants against exploitation by landlords. However, the justification for the persistent imposition of rent control in New York City is different since it protects a minority group of financially weak tenants against homelessness. The English landlord-tenant regime highlights the importance of a well-structured social sector that can provide secure, long-term housing options for low-income households who are struggling to access the private rental sector. Additionally, the English rental housing framework shows that if the social sector is functioning as a "safety net" for low-income households, the private sector would be able to uphold deregulation. In light of these comparisons and the fact that the South African social sector is not functioning optimally yet, the question is whether the South African private sector is able to provide the required level of tenure protection for struggling tenants. Recent case law shows that tenants are at liberty to lodge unfair practice complaints with the Rental Housing Tribunals on the basis that the landlords' ground for termination of the lease constitutes an unfair practice. The Court defined an unfair practice as a practice that unreasonably prejudices the tenants' rights or interests. This judicial development signifies some transformation in the private sector since it allows the Tribunals to scrutinise landlords' reasons for termination of tenancies in light of tenants' personal and socio-economic circumstances. The Tribunals are therefore empowered to weigh the interests of both parties and decide whether to confirm termination of the lease or set aside such termination. In light of this recent development, the Tribunals can provide strengthened tenure protection for destitute tenants on a case by case basis, which incorporates a flexible context-sensitive approach to the provision of secure housing rights in the landlord-tenant framework. This methodology is similar to the German approach. Even though this judicial development is welcomed, it raises some concerns with regard to landlords' property rights and specifically landlords' constitutional property rights since Tribunals are now at liberty to set aside contractually agreed grounds for termination of leases without any statutory guidance. The legislation fails to provide any information regarding legitimate grounds for termination, which might have to be rectified in future. The grounds listed in the rent control legislation should serve as a starting point to determine which grounds for termination of a lease should generally be upheld. However, German landlord-tenant law shows that a statutory ground for termination of a lease should not be imposed in an absolutist fashion but rather place a heavier burden on the tenant to prove why the lease should not come to an end.

To succeed with their application for rescission, the appellants in Occupiers, Shulana Court,11 Hendon Road, Yeoville, Johannesburg v Steele 2010 4 All SA 54 (SCA) had to show that they had a bona fide defence against the plaintiff's eviction claim. The appellants contended that the eviction order would render them homeless and in terms of ss 4(6) and 4(7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) the court may grant an eviction order only if it would be just and equitable to do so. They alleged that they were entitled to protection in terms of ss 26(1) and 26(3) of the Constitution of the Republic of South Africa, 1996. S 26(1) guarantees the right to have access to adequate housing, while s 26(3) ensures at least due process in eviction proceedings, as the court must consider all relevant circumstances before granting an eviction order: para 9. In the court a quo (City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 2011 5 SA 19 (SCA)), the occupiers contended that the effect of the eviction order would be to render them homeless and argued that the City must provide them with alternative accommodation. They relied on their constitutional right of access to adequate housing and the state's duty to give effect to this right: practice disputes; determine whether termination of the lease should be invalidated or not; and set aside termination of the lease if it finds in favour of the tenant. 20 The implication is that the Tribunals are empowered to nullify contractually agreed termination clauses, overturn the termination of leases, and reinstate tenants as lawful occupiers. The majority judgment's interpretation of the Rental Housing Act 50 of 1999 (Rental Housing Act) therefore highlights a substantial departure from landlords' common law right to unilaterally terminate leases, because the Tribunals are now empowered to scrutinise landlords' reasons for the termination of leases and in effect provide substantive tenure protection for tenants. The Court considered the extensive tenure security measures during the pre-1994 rent control regime and interpreted the Rental Housing Act to construe better security of tenure for tenants in the constitutional dispensation. 21 Interestingly, the effect of the Court's interpretation of the Act in relation to strengthened tenure rights for tenants is similar to one of the general aims of rent control, which is to enable tenants to continue occupying the leased premises beyond the expiration of the agreed lease.
The purpose of this article is to critically show how the legal construction of rent control/regulation, 22 as both a security of tenure and a rent restriction measure, has intervened in private landlord-tenant relationships in a number of jurisdictions, namely pre-1994 South Africa, England and New York City. In all of these jurisdictions the policy-makers and legislatures decided to regulate the private landlord-tenant relationship and provide substantive tenure protection for tenants. 23 The phrase "security of tenure" in the landlord-tenant framework is defined as a form of protection against eviction, but in effect it is aimed at suspending (or preventing) the termination of the tenant's legal right to occupy the premises. Substantive tenure 20 Maphango v Aengus Lifestyle Properties 2012 ZACC 2 para 68. 21 Maphango v Aengus Lifestyle Properties 2012 ZACC 2 paras 29-31. 22 The terms "rent control" and "rent regulation" will be used interchangeably throughout this article; both terms refer to a similar type of legislative intervention, namely where the state regulates the private rental market in order to restrict rent increases and provide security of tenure. The reason for the interchangeable use is that the different laws and literature do not necessarily make the distinction between "rent control" and "rent regulation" in the traditional sense, as noted by Miron 1990 Urban Studies 168. Miron argues that some modern forms of rent control are referred to as rent regulation, which refers to schemes that screen rent increases with a view to preventing unjustified rent increases, while traditional rent control froze or fixed rents. 23 See Maass and Van der Walt 2011 SALJ 436-451 for the difference between substantive and procedural protection.

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protection (or security of tenure) is therefore a legislative mechanism that ensures lawful occupation for continuous periods, or in the words of Brand J, "in perpetuity". 24 Modern rent controls are generally aimed at placing restrictions on rent increases 25 and providing security of tenure for tenants through anti-eviction measures. 26 Rent control has been defined as a drastic form of statutory intervention aimed at providing tenants with continued occupation rights on termination of their leases. 27 Undoubtedly, the main objective and benefit of rent regulation/control is to ensure that the landlord cannot evict the tenant by simply increasing the rent disproportionately. 28 It is noteworthy that the aim and effect of the Constitutional Court judgment in Maphango v Aengus Lifestyle Properties 29 was to ensure that the landlord cannot simply terminate the lease in order to circumvent rent restrictions as negotiated in the lease. 30 The article considers the nature of rent control as a regulatory law that should ideally accord with the relevant socio-economic circumstances, while it also functions as a mechanism that aims to balance the unequal bargaining power of landowners and tenants. The justification for rent control is a recurring theme throughout the article.
The required supply of decent affordable rental housing in the private sector usually indicates whether or not this type of intervention is necessary to accommodate tenants in general. However, rent regulation is also justified if only some tenants are experiencing a housing shortage.
The development of rent control in South Africa is discussed with English and New York City rent control laws as comparative sources. This comparison highlights the complexity of rent regulation laws and concludes with a reflection on the deregulation of the South African private rental market. The rationalisation for the continued imposition of rent control in New York City is highlighted in comparison with the conceivability of deregulation in the English rental market. The necessity of a social 40 Section 25(6) Constitution states that any person whose tenure is legally insecure as a result of past racially discriminatory laws is entitled to tenure which is legally secure. S 25(9) states that parliament must enact legislation in order to give effect to the constitutional commitment in s 25(6). 41 Maphango v Aengus Lifestyle Properties 2012 ZACC 2. Introduction Arguably, state interference usually takes place when it becomes apparent that the public interest demands intervention in the process of supply and demand. Excess demand for rental housing in relation to insufficient supply will result in an increase in rent. By means of legislation, the state can intervene in the market and place restrictions on rent increases and the right of landlords to evict tenants on the termination of their leases, generally referred to as rent control. Rent control "usually originates when war or emergency conditions suspend the normal operation of market forces." 42 Regardless of the domination of ownership over other interests in land and its resistance against statutory intervention, "governments routinely use (and have always used) legislation to amend or regulate the hierarchical domination of property ownership in response to social, economic and political circumstances and requirements. One significant example of such intervention is the embodiment of anti-eviction policies in legislation". 43 In the landlord-tenant framework, these interventions usually take the form of rent control but it can take other, more implicit forms as well. The initial rent control regimes in England, South Africa and New York City emerged during war-time emergency conditions but the nature, development and continued justification of these interventions are remarkably different as they relate to the jurisdictions' socio-economic and political conditions. Before the beginning of the twentieth century there was little or no government interference in English landlord-tenant law and the private sector represented more than ninety per cent of the rental market. At the end of the nineteenth century, increased urbanisation led to a housing shortage in urban areas. The Rents Act  45 As a result of increased inflation and continued housing shortages the legislature introduced further regulatory measures, which remained on the statute book for most of the twentieth century and are still in operation. 46 The socioeconomic conditions in South Africa were similar to those in England after the First World War, which led to a housing shortage and the potential exploitation of tenants.
The Tenants Protection (Temporary) Act 7 of 1920 47 was enacted to prevent such exploitation by restricting the landlord's right to eject the tenant on expiration of the lease. 48 In the same year the Rents Act 13 of 1920 49 was passed 50 , which was succeeded by a number of laws 51 that enforced rent restrictions and provided substantive tenure protection for tenants until the end of the century. 52 Rent control was introduced only in the 1940s in various states and municipalities throughout the United States of America. 53 The imposition of rent control was never an unusual statutory intervention. 54 In 1943 New York City introduced rent control in response to extreme housing shortages. 55 Currently, rent control, combined with rent stabilisation, is still in force in New York City. 56 The imposition of rent control in these jurisdictions was initially justified, because its aim was to address "emergency type" housing shortages. requires some emergency housing condition for it to be justifiable. However, the nature of rent control is far more complicated than it might seem, since it can function efficiently only if it is founded on socio-economic policy considerations that reflect the extant housing market; is accepted as a regulatory law that aims to establish a proportionate balance between the interests of tenants and landowners; and is justified on the basis of a housing shortage that might be experienced by only a small sector of the housing market. These aspects of rent control are discussed in the following paragraphs in the contexts of the particular jurisdictions, focusing specifically on English and US law.

2.2
The nature of rent control The landlord-tenant legislation promulgated in England originated from policy considerations in relation to economic and social circumstances. Tenants in the private rental sector faced uncertainty because of the social and economic conditions created by the First World War; therefore the legislature had to intervene in order to provide some stability. 57 Social and economic circumstances usually influence key reforms in the rental housing market, placing emphasis on policy considerations that could result in transformation 58 but some of the major reforms are not necessarily connected to these conditions. In some instances reform can take place merely to provide the tenant with a stronger right. Strengthened rights of tenants might result in some balance between the contracting parties with regard to the division of different interests. 59 If the legislature promulgates laws to achieve certain policies, without taking the socio-economic context into consideration, the resulting policies might not be successful. 60 The "political will, energy and resources" The English landlord-tenant regime has been defined as a regulatory law. 62 The concept and nature of regulatory law is not easily definable but Bright 63 suggests that it is concerned with "state control directed to social and individual action to address problems of social risk or market failure." Blandy argues that regulatory laws either substitute private rights with state control through the use of agencies 64 or subject private rights to less comprehensive regulatory restrictions. It is sometimes important for regulatory laws to co-exist with and supplement rights-based law. In the context of landlord-tenant relations it is sometimes necessary to grant tenants more than a regulatory right. 65 One should therefore consider the role and aim of parliament when examining housing policy, because the legislation might override the strong common law rights of landlords in rights-based law to provide better and more secure rights for tenants through regulatory law. The critical question is if the statutory laws are in conflict with rights-based law, and if the correct housing policy is being followed and developed by parliament in each rental housing sector to sustain the optimal balance in the provision of rental housing.
The perceived nature of rent control in the English landlord-tenant regime is useful as a comparative tool since it highlights the context-sensitive dimension of this type of state regulation. Undoubtedly, the regulations will interfere with extant property rights of landowners and the question remains whether this interference is justifiable or not. More importantly, the preliminary question remains whether or not any given state, legislature or society perceives its private rental market as a regulatory law. A private rental market that is perceived as purely contractual and left to the free market would require continuous justification of an "emergency type" for any form of regulation, which could frustrate attempts by the courts and legislature to create an equitable balance between the interests of landowners and tenants. Nevertheless, 61  On the other hand, the modern perception (and nature) of the landlord-tenant relationship in US law has been influenced by various factors, including urbanisation, industrialisation, consumerism and social consciousness. This has led the courts to view a residential landlord as the party with superior knowledge of the "product" and therefore also with superior bargaining power. At common law, landlords are at liberty to include certain terms and conditions in the lease that may have a harsh impact on tenants, thereby exploiting unequal bargaining power during periods of housing shortages. 67 The courts can play a role in scrutinising the contracts that are created in the context of unequal bargaining power, but some argue that such a case by case approach could be inefficient. 68 The position of tenants is seen in a different light, since tenants are allegedly merely interested in establishing a home within the given "product" of the landlord. 69 66 Underkuffler's theoretical approach to changes in property structures provides a useful perspective to assess and understand the transformation of occupiers' (and more specifically tenants') rights under the South African Constitution. The bases on which previous property regimes were constructed developed according to changes in human needs and conditions, because the composition of property rights in one era could be undesirable in the next. If one agrees that property expresses "an area of individual autonomy and control" it follows that changes in human needs require the transformation of property, and more specifically the protection of property: Underkuffler Idea of Property 43. Underkuffler proposes a distinction between the common conception of property and the operative conception of property. According to the common conception of property, individual interests held by legal rights holders are protected by property and these rights are presumptively superior to competing public interests. Individual rights can be limited (or overridden) by public interest of a compelling nature, but limitations must be justified because property rights have presumptive power: Underkuffler Idea of Property 44-46. In terms of the operative conception of property, change is imbedded in the concept of property and property rights change according to, and in accord with, general social needs: Underkuffler Idea of Property 48-49. Despite her use of the concept of property to define the rights and interests of individuals and society at large, she emphasises that property remains a social institution that reflects decisions made by society: Arguably, residential tenants attach substantial value to their leased property, because it resembles their homes. The concept of "home" has received extensive consideration during recent years by scholars from both England and the US. 70 Currently, the concept of "home" refers to much more than the mere physical shelter associated with it. 71 A secure home is also a means of connecting families within a community. It enables individuals to obtain some stability and a sense of belonging, which would contribute towards better social structures and improved individual wellbeing. 72 The tenant's interest in the lease, especially with regard to the concept of home, depends on the level of tenure security afforded to him/her by the legislature.
If the government's housing policy is aimed at providing better tenure security for tenants, allowing them to occupy leased property for continuous periods, depending on their will and good behaviour, these occupiers can experience a sense of connectedness and establish their place in society. 73 Radin's arguments in favour of rent control are useful to the extent that they highlight the different interests of landowners and tenants, although she also places substantial weight on the interests involved according to a moral consensus that might be controversial and unsubstantiated. 74 She argues that in some circumstances the tenant's non-commercial personal use of her apartment as her home carries more weight, on a moral basis, than the landlord's commercial interest 70 More specific for the purpose of this article, see for instance Fox Conceptualising Home; Radin 1986 Philosophy and Public Affairs 350-380;Radin 1981-1982Stanford LR 957-1015 The meaning of "home" has also received some consideration in South Africa and in international law. In the South African context see Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) para 35 where Yacoob J found that the right to housing in terms of s 26(1) of the Constitution "entails more than bricks and mortar". In the international context the International Covenant on Economic, Social and Cultural Rights (1966)  in reclaiming the apartment. 75 "Personal" property is "bound up" with a person's personhood to the extent that self-investment in the specific object takes place, 76 while "fungible" property is held by persons for commercial reasons and is exchangeable. 77 The connection between the personal property and the individual contributes to self-development and enables the person to participate in society as a fulfilled person. 78 Radin argues that the tenant's rented property is her home, 79 which is a justifiable form of personal property, because self-investment has taken place. 80 The preservation of the tenant's interest in the home therefore becomes "a priority claim over curtailment of merely fungible interests of others." 81 It follows from Radin's personhood perspective that property for personhood necessitates more stringent legal protection than fungible property, because personal property is deemed more important by social consensus. 82 Despite extant housing shortages, Radin underlines the fact that measures promoting security of tenure will enable tenants in general to foster and develop a sense of connectedness in the given property. This type of home interest is absent in an unregulated private landlord-tenant regime, because the home interest depends on strengthened levels of tenure security. In addition, Radin places emphasis on the parties' unequal bargaining power, which is evident if one considers the impact of loss. 83 If the landlord unilaterally decides to terminate the lease and decide on 75 Radin 1986 Philosophy and Public Affairs 360. 76 The notion of property being bound up with the holder was initially introduced by Radin in an earlier article where she extensively analysed the relationship between property and personhood: Radin 1981-1982 Stanford LR 957. She argues that the strength of a person's relationship with a specific object could be measured by the pain that person would suffer once the object is lost: Radin 1981-1982 Stanford LR 959. 77 Radin 1986 Philosophy and Public Affairs 362. Radin also suggests that the distinction between personal and fungible property should actually function on a continuum, because self investment in property is a matter of degree: Radin 1986 Philosophy and Public Affairs 363. 78 The function of property in German constitutional law is similar to Radin's perspective regarding personal property. The point of departure is that tenants should be enabled to achieve human fulfilment, and security of tenure forms a vital role in giving effect to this ideal: Maass Tenure Security s 7.4.1. The societal function of property, and more specifically the importance of property for human fulfilment, is also highlighted by Alexander and Peñalver. However, the role of the community and the web of social relations it presents is a fundamental consideration in their theory: Alexander and Peñalver 2009  eviction, the tenant will lose her home, her sense of connectedness and place in society in a matter of months, if not weeks. On the other hand, if the tenant decides for instance to terminate a periodic tenancy the landlord might lose some commercial gain, if anything at all. The landlords' interest is purely commercial and in fact "fungible" as she can merely replace the current tenant, while the tenant's loss could be substantial from a personhood perspective. 84 Arguably it was as a result of this conception of the landlord-tenant relationship that the US courts started to implement a warranty of habitability in residential rental housing, which has led to new regulations and housing codes throughout the metropolitan cities. 85 "Residential landlords have become a species of regulated public utility", as Friedman 86 explains. The implied warranty of habitability forms part of a corpus of various reforms 87 . The risk in imposing these reforms is that landlords would respond by increasing their rents. The result would be a general improvement in the standard of rental housing combined with rent increases, which could possibly be counter-productive. The question is if rent control, combined with some government-assisted housing programmes, could solve this problem. 88 Rent control generally aims to alleviate undue hardship suffered by tenants as a result of housing shortages, although these laws are also aimed at ensuring a fair return on the landlord's rental housing investment. Rent control is usually combined with housing 84 The unequal impact of eviction for landowners and tenants was acknowledged in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 2012 2 SA 104 (CC) para 39, where Van der Westhuizen J stated that "[e]viction of the Occupiers will render them homeless. There is no competing risk of homelessness on the part of Blue Moonlight, as there might be in circumstances where eviction is sought to enable a family to move into a home". The reason ("ground"; see s 3) for eviction must be taken into consideration and weighed against the interests of the tenant. 85 The role of federal, state and local governments in "regulating, producing and financing …. public and private housing tenements" has also been expanded as a result of this modern conception of the landlord-tenant relationship: Friedman It seems that the warranty of habitability could in some instances have initiated rent control measures to ensure that landlords do not drive tenants out of their dwellings by increasing the rent because their properties fail to meet the warranty of habitability standards. Increasing the rent and cancelling the lease are therefore mechanisms that landlords could use to circumvent other regulatory measures such as the warranty of habitability. Conversely, strict rent control measures are often criticised on the basis that they can easily lead to more dilapidated buildings as landowners neglect their properties. 90 The effect is that the dwellings are often rendered unsafe and placed out of the housing market, which could have a negative impact on the quantity of available rental housing stock.
A preliminary conclusion is that regulatory measures, in general, that are imposed in landlord-tenant regimes have diverse aims. However, whether the main purpose of rent control is to restrict rent increases, provide strengthened tenure security for tenants, or enforce a warranty of habitability, it is clear that these aspects are not free-standing principles. They are interdependent as none could succeed without the successful implementation of the others. 91 This highlights the importance of wellresearched rental housing policies that should be reflected in rent control legislation, which essentially manifests a movement from a free market towards a regulatory system. 92 A severe housing shortage, or the mere potential of exploitation by landlords, should generally justify the enactment of rent control laws, although disproportionate bargaining power could also suffice as validation for rent control, especially if security of the home forms part of government policy. Properties 2012 ZACC 2 might manifest a movement in the South African landlord-tenant regime away from a free market in terms of which the landlord and tenant could agree on a ground for termination of the lease towards one where contractual provisions could be overturned by Rental Housing Tribunals on the basis that they constitute an unfair practice. This type of intervention is not analogous to strict rent control since it is not enacted as such. However, the Tribunals are currently empowered to grant substantive tenure protection for tenants by overturning termination clauses and restricting rent increases, which is similar to the essence of rent control. The difference is that the Tribunals can invoke these measures on a case by case basis, which is a more flexible approach that allows differentiation on the basis of need.

The justification for rent control
The state may intervene in the rental housing market for a variety of reasons, including the desire to grant better tenure security for tenants, to develop and improve the supply of affordable housing, or to maintain economic production. The extent to which the state should intervene is uncertain and an unavoidable issue in landlord-tenant law. 93 Statutory intervention manifestly restricts the rights of landowners to use their property in the way they see fit, and consequently stimulates some form of resistance by private sector landlords. Initially, the "powerful political and philosophical rhetoric of property" was used in English law to oppose statutory restrictions. 94 This power of property rhetoric influenced the executive and parliament in placing a restriction on law making. 95 In the middle ages the majority of writers agreed that the right to property formed part of what was called "the fundamental law of England" which bound parliament and the Crown. 96 The state has intervened in the English private sector, placing restrictions on the contractual freedom of the parties and therefore effectively limiting the power of landowners. However, the power of property is not undermined by these restrictions, because regulatory interference with property still requires justification. 97 Similarly, the majority of US rent control laws require some form of housing emergency to justify the imposition of regulations, but in some US states the existence of a housing emergency is not a requirement for such a justification "if the statutes serve the public interest". 98

Background
The Tenants Protection (Temporary) Act of 1920 105 introduced rent control in South Africa. The aim of the Act was to provide urban tenants with substantive tenure protection by automatically creating a statutory periodic tenancy at the end of a fixedterm tenancy, provided that the tenant continued to pay the rent on expiration of the lease and complied with the other conditions of the tenancy. Consequently, the landlord could not eject the tenant except on certain grounds, as stated in the Act. 106 According to section 1 (1)

Rent restrictions
The aim of the South African Rent Control Act of 1976 was to control the rent of "controlled premises" 148 and to provide substantive tenure security for tenants. To control rentals, the Act froze the rent at the rate charged on the first day of April The English Rent Act of 1977 makes provision for the establishment of "fair rents", 149 which are determined by a rent official. 150 The applicant must propose a fair rent, after which the rent officer will ask the other party to make recommendations and, if necessary, oppose the proposed rent. 151 When the rent officer decides on a fair rent he will register the rent in the registration area. 152 Consequently, the rent will attach to the land and not the parties. 153 Section 67(3) makes provision for a new application after two years, although it also states that the parties can apply for the registration of a new rent when the terms of the tenancy change or when the condition of the premises change. 154 The New York City Rent Stabilization system places a restriction on the rent charged by regulating the rent at the beginning of a tenancy as well as annual rent increases. 155 The Rent Guidelines Boards (RGB) establish maximum rent increases for new tenancies and for renewed leases, but special rent increases are also provided for where a landlord is experiencing some form of hardship or where certain improvements were made to the premises. 156 The maximum base rent (MBR) system allows the New York State Division of Housing and Community Renewal (DHCR) to set rent increases in the MBR system for rent-controlled apartments, 157 although landlords are allowed to increase rents annually to a maximum of 7.5 per cent. 158 149 The determined fair rent is the highest rent the landlord can obtain from the tenant. If the contract makes provision for rent increases the landlord is allowed to increase the rent, but not beyond the registered rent: Garner Landlord and Tenant 193. 150 In order to create a fair rent, the tenant, landlord, both parties (s 67 Rent Act 1977) or the local authority can apply for the registration of a fair rent in a prescribed form to the rent officer. 151 After both parties have had the opportunity to make proposals the rent officer usually consults with the parties and visits the premises: Garner Landlord and Tenant 189. 152 Section 66 Rent Act 1977 makes provision for the registration of rents in a register created for certain areas. 153 The registered rent will bind future lettings, irrespective of a change in tenant or landlord: Garner Landlord and Tenant 189. 154 Partington Landlord and Tenant 260 notes that the effect of inflation would tend to increase the registered rent rather than to provide a mechanism according to which the tenant can reduce the rent. 155 The initial rent charged for a rent-stabilised unit has to be registered with the New York State Division of Housing and Community Renewal (DHCR) and is referred to as the "initial legal regulated rent" if the rent was registered after 1    171 These grounds are discussed simultaneously with the grounds for eviction in terms of the English Rent Act 1977 due to the large number of similar grounds, although reference is made to the relevant system (or systems). 172 Where the tenant has committed a breach of covenant, the remedy enables the landlord to reenter the dwelling and forfeit the tenancy. UK Law Commission Termination of Tenancies Part 2 recommended that the entire remedy should be abolished and replaced with a statutory scheme for the termination of tenancies. 173 Van der Walt Margins 99 states that forfeiture, effluxion of time and notice to quit were the three most important ways in which to end a tenancy at common law. 174 Evans and Smith Landlord and Tenant 290-294. See Wilkie et al  for an extensive discussion of the succession of statutory tenancy as regulated by the Rent Act 1977 and the Housing Act 1988. The general rule is that the tenancy will not end as a result of the death of the tenant. 175 Bridge Residential Leases 99. Where a landlord institutes a claim for possession based on one of the grounds listed in s 98 Rent Act 1977, but excluding the grounds listed in Schedule 15 Part II, the court has a discretion to adjourn the proceedings, stay or suspend the execution of the order or postpone the date of possession: Evans and Smith Landlord and Tenant 289-290. 176 In Keeves v Dean 1924 1 KB 685 686 Lush LJ found that a statutory tenancy does not provide the tenant with a proprietary interest but rather affords the tenant with a "status of irremovability". A statutory tenancy will bind a successor to the landlord's title but will not prevail against a mortgagee seeking possession in order to realise his security: Britannia Building Society v Earl 1990 1 WLR 422 (CA).

Security of tenure
and not by agreement, although the terms of the protected tenancy will be adopted in the statutory tenancy, provided the terms of the tenancy are consistent with the Rent Act. 177 One can conclude that the Act does grant substantive tenure rights 178 for private tenants in the English landlord-tenant framework through the mechanism of statutory tenancy and by allowing the landlord to repossess the property in limited, statutorily defined circumstances. 179 As against the grounds for possession in the South African and New York City rent control statutes, the English 1977 Rent Act makes a distinction between two categories of grounds for possession orders. Section 98(1) regulates the "discretionary grounds", while section 98(2) regulates the "mandatory grounds".
Section 98(1) states that the court may grant a possession order only if the court considers it reasonable 180 and is convinced that there is either suitable alternative accommodation 181 available for the tenant or one of the circumstances as specified in any of the cases/grounds in Part I of Schedule 15 (also known as the "discretionary cases") prevails. 182 Where the landlord proves one of the discretionary grounds but the court does not consider the possession order reasonable, the landlord will not be able to repossess the property because reasonableness is an "overriding requirement". 183 The discretionary cases/grounds for eviction are discussed in the following paragraphs.
177 Bridge Residential Leases 105. One of the terms included in the statutory tenancy is that the tenant must give notice to quit, either as determined in the protected tenancy or for a period of not less than three months. 178 Garner Landlord and Tenant 181 defines "security of tenure" as rights acquired by a tenant through the operation of a statutory code which effectively overrides the common law in order to protect the tenant on expiration of the lease. 179 Garner Landlord and Tenant 181. The nature of the statutory tenancy in English law is similar to that in South Africa and New York City. 180 In Cumming v Danson 1942 2 All ER 653 655, the court found that in order to establish if a possession order is reasonable, the court has to consider "all relevant circumstances as they exist at the date of the hearing". The court is at liberty to consider any factor, "in a broadcommon sense way", that might affect either the landlord or the tenant and may attach the appropriate weight to the given factor: Garner Landlord and Tenant 202. The court has to consider the unique circumstances of each case on a fact-based approach. The court considers various circumstances, including the personal circumstances of both parties. 181 The alternative accommodation requirement will be satisfied if the landlord obtains a certificate from the local authority certifying that it will provide the tenant with the necessary accommodation or if the landlord arranges accommodation for the tenants from another private landlord: Garner Landlord and Tenant 199. 182 This section therefore requires reasonableness and either the availability of alternative accommodation or one of the grounds as provided for in the schedule. 183 Garner Landlord and Tenant 202.
If the rent is in arrears or the tenant has breached an obligation in the lease, the landlord can rely on case 1. 184 Case 2 regulates the position regarding nuisance 185 to adjoining occupiers and the use of the dwelling for illegal purposes. 186 If the premises deteriorated as a result of the tenant's neglect, the landlord can rely on case 3. 187 The landlord can rely on case 5 if the tenant gave notice to quit but decided to remain in the premises, 188 while case 6 may entitle the landlord to repossess the premises where the tenant sublet or assigned the property without the landlord's consent. 189 Where the employee ceases to work for the employer/landlord he would be able to rely on case 8 to repossess the property. 190 196 Case 11. 197 Case 12. See also case 20. 198 Case 13. 199 Case 14. 200 Case 15. 201 The Act requires that the dwelling must have been occupied by such an employee before the current tenancy was granted and the landlord must have given notice to the current tenant of the possible ground for possession. 202 The protected short-hold tenancy was created by the Housing Act 1980 and afforded the landlord the means to grant a short fixed-term tenancy without providing security of tenure for the tenant: Garner Landlord and Tenant 212. 203 The landlord had to give notice to the tenant and no further tenancy may have been granted after the protected short-hold tenancy. 204 The dwelling has to be overcrowded within the meaning of Part X of the Housing Act 1985.

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There are a few unique grounds for eviction in the New York City rent regulation laws that are not reflected in the other two jurisdictions. In terms of the Rent Stabilization Code, the landowner may evict the tenant if he unreasonably refuses access to the premises. 205 If the landlord can establish that the tenant is not using the unit as her primary residence the tenant may be evicted. 206 The landlord of a rent-controlled unit in New York City may seek to evict the tenant when she requires the premises for substantial alterations. 207 The aim of the alterations must be to subdivide "an underoccupied housing accommodation …. into a greater number of housing accommodations". 208 Where the landlord of a rent-controlled or rent-stabilised unit seeks to demolish the premises, the landlord may institute eviction proceedings. 209 Another basis that the landlord of a rent-controlled or rent-stabilised unit in New York City may rely on is where the landlord seeks to withdraw the premises from the housing market. 210 In terms of the Rent Stabilization Code, the landlord can seek permission to refuse to renew the lease where the landowner intends to remove certain unsafe conditions from the premises. 211 However, the landlord must agree to reoffer the renovated unit to the tenant. 212 From the discussion it is clear that anti-eviction legislation in the three jurisdictions drastically interfered with the rights of landowners to the extent that landlords' right to terminate leases in terms of the common law was restricted and, consequently, their right to evict tenants was also restricted. In all three jurisdictions the legislation created a statutory tenancy on termination of the contractual lease, which forced landlords to provide housing for continuous periods at restricted rents. Even though some of the grounds for eviction are similar, a number of grounds are unique to that specific jurisdiction, and it is therefore difficult if not impossible to logically align all the grounds for eviction in a coherent manner. The grounds for eviction are context-72 / 231 sensitive to the specific jurisdiction and have mostly developed over decades to establish a set of reasons why (and when) eviction should be possible. This set of reasons and its stringency should ideally reflect the particular government's housing policies, specifically the policies that aim to accommodate lower income groups. In addition, the grounds for eviction determine the delicate balance between the landowners' property rights and the tenants' right not to be arbitrarily evicted, 213 although this proportionality exercise is squarely based on the relevant circumstances. If the private landowner is entitled to evict the tenant on termination of the lease, based on one of the grounds for possession in the legislation, this eviction right is neither pre-determined nor hierarchical in relation to the tenant's housing interest, but rather derives from the legislation, which aims to protect the interests of both parties. 214 The current South African landlord-tenant framework is not based on a rent control policy and the rental housing statutes can also not be defined as rent control statutes. It therefore follows that the laws, and specifically the Rental Housing Act, do not include a list of grounds for termination of leases. A landlord can therefore not claim termination of a lease and assume that his reason is justifiable because it is included in a predetermined list of grounds for termination. In the light of Maphango v Aengus Lifestyle Properties, 215 the landlord can also not assume that the ground for termination as stipulated in the lease will absolutely entitle him to cancel the lease. If the tenant lodges a complaint with the Rental Housing Tribunal on the basis that the ground for termination constitutes an unfair practice, the Tribunal may scrutinise the landlord's reason for termination and must strike a balance between the interests of both parties. 216 This balancing exercise should take place in accord with the spirit, purport and objects of the Constitution.
A clear indication that government should consider deregulating the private rental market is when lower income groups can access affordable housing elsewhere. This 213 See in general Michelman 1970 Harvard Civil Rights-Civil Liberties LR 222-223. 214 In the light of the recent Maphango v Aengus Lifestyle Properties 2012 ZACC 2 judgment, the Rental Housing Tribunals must ensure an equitable balance between the interests of landowners and tenants when deciding unfair practice disputes. However, the Tribunals have to adjudicate these disputes in an unguided manner since the Rental Housing Act 50 of 1999 does not give detail regarding justifiable grounds for termination. It merely states that the ground for termination may not constitute an unfair practice, while an unfair practice is defined as a practice that unreasonably prejudices the rights or interests of the tenant: ss 1 and 4 (5) is evident from the English and New York City systems, although it is not as obvious when considering the reasons why the South African market was deregulated.

Deregulation
The Fouche Commission was appointed by the South African government in 1976 to investigate the need to sustain rent control. The Commission recommended that rent control be phased out over a period of time. 217 The proclamations 218 systematically phased out the old Rents Acts because "there was an adequate supply of housing for Whites in most metropolitan areas". 219 A large number of tenants lost rent control protection within a mere three years. 220 It was contended that the effect of rent control was to restrain rental housing development, but the phasing out of rent control did not result in any improvement in the private rental market. 221  Minister also had to respond to suffering tenants and alleviate their hardship by means of a newly introduced special national housing programme. Vulnerable tenants could be categorised on the basis of their age, income, or any other form of vulnerability. 226  has been taken to alleviate any hardship suffered by vulnerable tenants, because the government did not assess the rental housing sector while phasing out rent control and the security of tenure it provided for tenants. 227 The position in England regarding the phasing out of strict rent control was fairly similar to that in South Africa, although the Rent Act 1977 still applies to tenancies created before 15 January 1989 and the Housing Act 1988 ensures some security of tenure through assured tenancies. 228 Initially the English Rent Act 1977 consolidated the previous Rents Acts and provided long-term tenure security for tenants. 229 The law of residential leases was in a "reasonably coherent and comprehensive state" in 1979, 230 but after the Conservative Party was elected in 1979 the policy changed, moving away from the aim to grant better tenure security for tenants and towards increasing the supply of private rental housing. 231 Security of tenure was gradually phased out, especially through the introduction of "short-hold" tenancies, 232 which afforded landlords the means to regain possession on expiration of the lease. 233 The private rental sector increased by 25 per cent from 1988 to 1999, but currently the sector represents merely eleven per cent of the housing stock in England. 234 227 Western Cape Rental Housing Tribunal 2003 www.capegateway.gov.za. The report indicates that approximately 3000 properties in the Western Cape were affected by the repeal. In Jackpersad v Mitha 2008 4 SA 522 (D) 532A-G Swain J held that the "crux of the obligation imposed on the Minister is that the tenants in question must be 'poor and vulnerable'": 532I-533A. Cameron J's interpretation in Maphango v Aengus Lifestyle Properties 2012 ZACC 2 of the nature and objects of the Rental Housing Act 50 of 1999 that replaced the previous rent control regime introduced a new perspective on the post-1994 landlord-tenant regime, which incorporates protective measures for both landlord and tenant. This includes security of tenure measures even though it is not explicitly stated as such. 228 In terms of the Housing Act 1988 the private landlord can choose to provide either an assured tenancy or an assured short-hold tenancy. The latter does not ensure substantive tenure protection for tenants. It is noteworthy that the purely private rental sector in English law currently represents a small percentage of the rental housing market. The majority of lettings in English law are either housing association 235 lettings or council housing 236 lettings.
Collectively, these lettings constitute the social sector, which is occupied mostly by the poor and marginalised on a long-term basis. 237 The benefits of social housing were confirmed by the Hills review, 238 which found that social housing provides stability and security for low-income tenants as well as an improved quality of housing (especially compared with the quality of housing these households could afford in the private market). 239 In 1989  Initially, council tenants had periodic leases that could be ended by a notice to quit.
Even though there was no statutory system of protection, the local councils For the greater part of the twentieth century, private sector tenants in England enjoyed extensive security of tenure combined with rent control, while council housing tenants' security was legally insubstantial, because it was unregulated until the legislature enacted the Housing Act 1985. The Housing Act 1985 currently regulates local authority tenancies and provides these tenants with substantive tenure rights. 247 An important matter to consider in the light of the policy decisions of parliament is the efficiency of the private rental housing market. One could argue that if the private rental market is functioning efficiently there is no need to impose extensive security of tenure or rent control measures, 248 provided that there is some mechanism affording efficient tenure protection for those members of society who need it. The English social sector makes rental housing available for lower income groups and the level of tenure security provided to such households is high because the households are financially and socio-economically vulnerable. The aim of this sector is to provide homes to these households and to ensure long-term occupancy that would allow marginalised individuals to actively participate in society and live fulfilled lives. The efficacy of the English landlord-tenant system could be found in its ability to provide different forms of rental housing, with different levels of security of tenure, to various individuals with diverse needs. Arguably, the protection granted in the private sector has decreased because there is no longer a need to impose strict rent control or security of tenure measures in this sector, while there is such a need in the social sector, because this sector makes accommodation available for the poorest members of society. The availability of stock in the social sector has a direct impact on the justification of deregulation in the private sector. If the social sector can accommodate disadvantaged and vulnerable groups, the private sector should generally be able to uphold deregulation. However, if there is a housing shortage in the social sector, some vulnerable groups would automatically seek housing options in the private sector, which could lead to exploitation by private landowners. This is also apparent in the New York City landlord-tenant regime if one considers the availability of housing in the social sector.

Federal, 249 state and local laws and regulations regulate public housing in New York
State. 250 To determine if an applicant is eligible for public housing, the authority must consider the applicant's household income; 251 household composition; citizenship status; and his probable behaviour as a public housing tenant. 252 Generally admission is allowed on a "first come, first served" basis, although the New York City local housing authority may determine that some groups should receive priority.
Priority is given to persons in need, including the homeless. 253 Housing authority accommodation is in high demand because the rents are low and the maintenance of the premises is good. The housing authority is burdened with numerous applications for public housing and would regularly seek to evict unauthorised occupiers to accommodate the housing backlog. 254 Generally tenants occupying public rental housing in New York City are protected to such an extent that they cannot be evicted without good cause and one can conclude that they occupy land with security of tenure. 255 The rental housing market in New York City is both interesting and comparable to the rental housing market in England. For most of the twentieth century the private rental market in England provided housing to the majority of tenants, who included low-income tenants. The private rental market was regulated to protect all tenants.
As the housing policy changed to increase the supply of private rental housing the market was deregulated, but during this period the social housing market increased and contributed to the provision of housing for low-income households. Currently the private sector can sustain deregulation because the social housing market is 249 The federal government is involved in the provision of housing for low and moderate income households through federally subsidised housing that is either owned by the government (also referred to as the Public Housing Program) or owned by private for-profit or not-for-profit parties. The Section 8 Program involves the provision of rent subsidies and forms the greatest part of the Public Housing Program: Scherer Landlord-Tenant Law 268. See Maass Tenure Security s 6.5.3 for a discussion of the Section 8 Program. 250 42 United States Code Annotated § § 1437. 251 The families' income must be categorised as "lower income" or "very low income" according to § 1437a ( Tenants occupying public housing in New York City may be evicted on the ground of "nondesirability", which includes behaviour of the tenant that constitutes some danger to the safety of neighbours: New York City Housing Authority Management Manual -Chapter 7 3(b)(1)-(5).
providing a type of "safety net" 256 for vulnerable occupiers. The social housing market is regulated quite extensively to protect vulnerable occupiers through the provision of affordable and secure rental housing. 257 The private rental market is therefore not burdened with the indirect duty of providing housing for low-income households, because affordable secure rental housing is made available by the social housing sector.
The position in New York City is different. The percentage of private rental housing in New York City is high, especially in comparison with the limited public rental housing stock. 258 The City has a large private rental housing market and thirty per cent of the market is unregulated. Tenants in the unregulated section of the market are paying more than the market rent, while tenants in regulated apartments either pay ten to forty per cent below the market rent or fifty to ninety per cent below the market rent, depending on the type of rent regulation applicable. 259 In New York City the public rental sector is not providing the required number of housing units for low-income households. The New York City private rental market is therefore burdened with the indirect duty of accommodating low-income households.
Previously the US courts held that rent regulation measures were constitutionally justifiable in the light of the housing crisis because landlords could exploit tenants. 260 The justification for rent regulation subsequently shifted to the provision of secure, affordable rental housing for a small, specified group of low-income individuals. If the leases of low-income tenants who occupy regulated rental housing in the private market expire, their chances of acquiring public rental housing would be very slim, because the availability of public housing is limited. The aim of the regulations is therefore to avoid an increase in homelessness and one can conclude that the more recent justification for rent regulation in New York City is therefore based on the public interest. The English landlord-tenant regime also shows the importance of a well-established social sector and how such a sector can contribute to the provision of secure rental options for low-income individuals. Arguably, the social sector in South Africa should be expanded to accommodate the majority of vulnerable households, who are struggling to find housing options in the private market. In addition, the current laws and policies that form the social sector should be amended to ensure substantive tenure protection 269 for social sector tenants since these tenants generally require long-term tenure protection in order to settle in their communities and social networks. In the interim, the recent Supreme Court of Appeal decisions show that the courts are struggling to find an equitable balance between the common law rights of private landowners to evict unlawful tenants, the tenants' rights to have access to adequate housing (and the right not to be rendered homeless) and the shortage of public housing options. The innovative approach of the Constitutional Court in Maphango v Aengus Lifestyle Properties 271 is therefore supported since it introduced a measure in terms of which Tribunals can provide tenure protection for private sector tenants on a case by case basis. This approach also avoids most of the criticism raised against strict rent control measures.

Criticism against rent control: the call for a different approach
The statutory construction of rent control manifestly shows how the legislature can afford tenants substantive tenure protection while also restricting rent increases, and this form of protection might seem attractive at first if one considers its aims.
However, the criticism against the strict imposition of rent control is incontrovertible and therefore briefly discussed in the following paragraphs to highlight the need for a more flexible approach to rent regulation in South Africa. When considering fixed-term tenancies, the point of departure is that the landlord must state a valid reason for entering such a tenancy and the reason must be in accordance with the Civil Code. 297 If the initial reason for the fixed-term lease still exists four months prior to termination of the fixed-term lease, the tenant may demand an extension of the lease for an equal period of time. However, if the initial justification for a fixed-term lease no longer exists, the tenant may demand an extension for an indefinite period. 298 One can conclude that the general grounds for termination of the lease, namely where there is a compelling reason or the landlord has a justified interest in cancelling the lease, are similar to the grounds for eviction in rent control statutes.
However, the grounds for termination that form part of the German Civil Code are not decisive, because the tenant's defence on the basis of a hardship that he could suffer as a result of termination can override the landlord's interest in cancelling the lease. The hardship provision is arguably a mechanism that allows the court as the final decision-maker to weigh the interests of both parties before granting termination of the lease. This provision incorporates some measure of context-sensitivity as the courts can consider the impact of termination on the specific tenant or his family and judge on the grounds of personal circumstances whether it would be just and equitable either to grant the termination of the lease or not.
Arguably, the Constitutional Court in Maphango v Aengus Lifestyle Properties 299 developed a similarly flexible mechanism that enables the Rental Housing Tribunals 296 BGB § 574a(1). 297 The landlord must prove that he would prefer to end a lease after a fixed period with the aim to acquire the dwelling for his own use; or to repair the dwelling; or to lease the dwelling to a person rendering services to him. Only if the landlord can prove one of these grounds may a fixed-term lease be entered into: BGB § 575 (1) to provide substantive tenure protection for a certain category of tenants in exceptional cases. 300 A tenant should be able to approach a Tribunal and argue that the ground for termination constitutes an unfair practice because the effect of termination would be to unreasonably prejudice the tenant's interests. This would typically be the case where termination and eviction would cause a disproportionate burden for the tenant, for example if the tenant would be rendered homeless. In such a case the Tribunal would act as the final decision-maker and judge on the basis of fairness and equality, taking into account the specific circumstances of both parties, if the effect of expiration of the lease would amount to a unfair practicea practice that unreasonably prejudices the rights or interests of the tenant. If the court finds in favour of the tenant and decides to provide some measure of tenure security, it should set aside the termination of the lease. The effect would be to create a tenancy similar to a "statutory tenancy" as developed in the jurisdictions referred to above, although the origin of the tenancy would not be legislation but rather a judicial suitable affordable rental housing options, which indicates that there is a shortage of both private and social housing. The New York City landlord-tenant framework evidently shows how the private rental market is indirectly burdened with a duty to provide affordable, secure accommodation if alternative housing options are exhausted. 304 The English landlord-tenant system also highlights the importance of a well-functioning social sector and the impact that such a sector would have on the private sector, namely that the private sector would be able to uphold deregulation.
In the absence of an efficient social sector, the burden to accommodate low-income tenants indirectly rests on the private sector, which eventually creates unavoidable frictions between the parties since they have unequal bargaining power and there is the possibility of exploitation by landlords. In reaction to the likelihood of abuse, the policy-makers and legislators impose rent control measures to provide some form of protection for these lower income tenants.
In the absence of a constitution that mandates the legislature to enact laws that would give effect to the right of access to adequate housing and the right not to be arbitrarily evicted, the apartheid legislature drastically interfered with private landowners' common law right to evict tenants on termination of their leases and it placed restrictions on rent increases. Both the New York City and English legislatures enacted similar laws (absent the constitutional mandate to that effect), 305 because it was justifiable in the context of the housing shortages of the time. In general, rent control statutes aim to provide tenure protection for tenants and restrict rent increases. These regulatory laws are usually imposed in a general fashion which provides protection for all residential tenants or a certain category of occupiers, dependent on the type of housing they occupy. In the light of the landlordtenant regimes analysed above one can also conclude that these types of interventions regulate landlord-tenant relationships for lengthy periods of time, and Tribunals are therefore enabled to provide protection for tenants on a case by case basis and strike a balance between the interests of both parties. At this stage it is unclear what interests the Tribunals would take into consideration and whether or not the Tribunals would be able adequately to weigh the interests of both parties.
Even though this judicial development is welcomed, it raises some concerns with regard to landlords' property rights and specifically landlords' constitutional property rights (section 25 of the Constitution), since Tribunals are now at liberty to set aside contractually agreed grounds for the termination of leases without any statutory guidance. The Rental Housing Act fails to provide any information regarding legitimate grounds for termination, a lacuna which might have to be filled in future.
The grounds listed in the rent control legislation should serve as a starting point to determine which grounds for the termination of a lease should generally be upheld.
However, German landlord-tenant law shows that a statutory ground for the termination of a lease should not be imposed in an absolutist fashion, and prefers to place a heavier burden on the tenant to prove why the lease should not come to an end. The Maphango v Aengus Lifestyle Properties 307 decision should be applauded for its innovative interpretation of the Rental Housing Act since it introduced a mechanism for strengthening tenants' rights. This mechanism is also not applied in a