Dealing with cannabis and drugs in rental properties

As cannabis laws continue to evolve in South Africa, both landlords and tenants need to understand how this affects rental properties. With cannabis use now legal for personal consumption in private spaces, landlords face new challenges, particularly when it comes to enforcing lease agreements and protecting their properties from damage or illegal activity.

Here’s what landlords should know about cannabis, drug use, and how to handle these issues in rental properties in 2024.

Cannabis: What the law says

In 2018, the Constitutional Court of South Africa made a landmark decision, ruling that the private use and cultivation of cannabis is legal for adults. However, this doesn’t mean tenants can use cannabis freely in rental properties without restrictions. Landlords still have the right to set rules regarding drug use in their rental lease agreements, as the law also protects property owners from damage or illegal activities on their premises.

To manage this, landlords can include specific clauses in the lease agreement to prohibit smoking, growing, or using cannabis in a way that could damage the property or disturb neighbors. It’s important to remember that rental agreements are legally binding, and tenants must follow the terms outlined in these contracts.

When does cannabis use become a problem?

Personal cannabis use becomes a concern for landlords when it affects the property or violates the terms of the lease. For example, smoking indoors could result in damage to walls, ceilings, or carpets. Tenants can be held liable for any damage caused by smoking cannabis, including discoloration of walls or odors, and the costs for repairs may be deducted from their deposit. Growing cannabis might lead to property modifications, such as the installation of lighting or irrigation systems, which could cause long-term damage.

Another potential issue is the nuisance it could create for other tenants or neighbors. Even though personal use is legal, if it leads to complaints or disrupts other tenants, it becomes a landlord’s responsibility to address the situation.

In communal living situations, body corporate rules regarding smoking in shared areas like gardens or balconies must still be respected, and landlords may need to enforce these rules even if cannabis use is legal in private spaces.

How to address cannabis and drug use in your lease

Landlords should be proactive by including clear terms about drug use in their lease agreements. These clauses can specify rules around cannabis use, such as whether smoking is allowed inside, or if tenants are permitted to grow cannabis plants. While the law allows for private consumption, landlords are still within their rights to prohibit certain activities on their property.

Here are some suggestions for what to include in your lease:

• No smoking indoors: Specify that smoking, including cannabis, is not allowed inside the property to prevent damage.
• Property modifications: Prohibit tenants from making changes to the property, such as installing grow lights, without the landlord’s written permission.
• Disturbance clauses: Outline consequences for tenants who cause a disturbance to neighbors or other tenants due to their cannabis use.

Having these terms in place allows landlords to address any violations clearly and enforceable under the Rental Housing Act.

Dealing with other drug use in your rental property

While cannabis use is legal under specific conditions, other drug use remains illegal in South Africa. If a landlord suspects that their tenant is using or dealing illegal drugs, immediate action should be taken.

South African law is clear about the use of illegal drugs like methamphetamine, heroin, and cocaine. These substances are strictly prohibited under the Drugs and Drug Trafficking Act 140 of 1992, and landlords can take swift action if they believe their tenants are involved in illegal activities. Suspected illegal drug use can result in the landlord reporting the activity to law enforcement or beginning eviction proceedings for a breach of lease terms. If drug-related activities breach the lease, landlords may proceed with eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) 19 of 1998.

Steps to take if you suspect illegal drug activity

If you, as a landlord, suspect drug use or dealing on your property, follow these steps:

1. Gather evidence: Document any suspicious behavior or complaints from neighbors. You need to have clear evidence before taking legal action.
2. Consult the lease agreement: Review the lease to check if there are clauses that the tenant has violated, such as engaging in illegal activities on the property.
3. Contact authorities: If illegal drug use is confirmed, contact law enforcement to handle the situation legally and safely.
4. Begin eviction proceedings: Under the Rental Housing Act, landlords have the right to evict tenants who engage in illegal activity, but the eviction must follow due process.

If a tenant violates the smoking clause in the lease, the landlord must issue a formal notice in accordance with the Consumer Protection Act (CPA) 68 of 2008, giving the tenant 20 business days to remedy the breach. While not required by law, it is recommended that landlords issue multiple warnings (commonly three) before proceeding to cancellation, as this demonstrates reasonable effort to resolve the issue.

If the tenant fails to comply within the notice period, the landlord may cancel the lease and begin the eviction process. The eviction must be carried out legally under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) 19 of 1998, where the landlord applies to the court for an eviction order.

Protecting your property as a landlord

To protect your rental property from any damage or illegal activities, it’s crucial to maintain open communication with your tenants and conduct regular inspections. Ensuring that your lease agreement is up to date with clear terms around cannabis and drug use will give you the legal backing to enforce your rules.

Additionally, landlords should stay informed about evolving laws and make sure they handle any suspected illegal drug activity promptly and legally, ensuring the safety and security of their property and other tenants.

Conclusion

In 2024, cannabis laws in South Africa continue to evolve, and landlords need to adapt accordingly. By setting clear terms in rental agreements, maintaining open communication, and enforcing rules fairly, landlords can protect their property while respecting tenants’ rights.

If illegal drug use is confirmed, landlords are legally required to report the activity to law enforcement. This can lead to eviction, even if the tenant is up to date on rent, as drug use constitutes a breach of the lease and is prohibited under the Drugs and Drug Trafficking Act 140 of 1992.

For more information on the legalities surrounding rental properties and tenant rights, visit the Constitutional Court of South Africa and review the Rental Housing Act.