What is the rule of law for maximum occupancy of a residential property?

A tenant walks into your offices with a view to renting a unit for himself and his family. His credit record is exemplary and you just know that he will be a model tenant. There is only one problem – his budget cannot stretch beyond a two bedroom unit in the area where he wants to reside. His family consists of his wife, his mother, his twin teenage sons, his 6 year old daughter and his two month old baby. Can seven people really legally inhabit a two bedroom property? Do you have a right or a duty to advise him of the maximum occupancy laws or rules that apply in the area in question and, if so, where do you look for guidance in this regard?

Where to look for guidance

The questions above are often posed by TPN’s clients. Unfortunately, in South Africa, this is one area in the rental arena where the legislature has left landlords and agents completely in the dark. Whilst the Occupational Health and Safety Act 181 of 1993 does provide some guidance insofar as commercial properties are concerned, to date, there is no legislation dealing specifically with the issue of maximum occupancy in respect of residential properties. Even municipal by – laws appear to be rather silent on this particular issue (although hopefully this position will change going forward). Whilst Body Corporate Rules do indeed often contain a maximum occupancy clause, the position will vary from complex to complex, given that Body Corporate Rules are not in any way standardized. From a health and safety (not to mention wear and tear) perspective, however, determining maximum occupancy is a really pressing issue. So what factors should one take into account when attempting to determine a reasonable maximum occupancy threshold in relation to a specific property?

Factors to take into consideration

The first and most obvious factor to consider is the actual size of the property, including how many bedrooms make up the property, the layout of the property and the total square footage of the property. When fire inspectors determine maximum occupancy in respect of hotel rooms and commercial properties, the basic formula that they make use of is length in footage multiplied by width in footage divided by 36. Whilst this formula would not generally be applicable in respect of most residential properties, in the case of a flat on the lower end of the market consisting of only two rooms, for example, it might be.

Layout can be an important factor to consider because it may be that a property only contains two bedrooms, but there may be an additional space that could ultimately be utilised as a third bedroom, such as a study or play area. In units that are small and open plan, this would obviously be more difficult.

Insofar as bedrooms are concerned, the general rule of thumb is that one bedroom can accommodate a maximum of two people. As such, a two bedroom unit would generally be deemed to be able to accommodate four permanent occupants. This rule is, however, open to interpretation, as discussed below.

Another factor to take into consideration is the age of the potential occupants. Infants and small children obviously take up less space that adults (although one would generally not say so given the noise that they are able to generate). As such, where minor dependants are going to occupy the premises, the rules regarding maximum occupancy may differ slightly from the norm.

The final factor to take into consideration is the actual physical limitation of the property in question. Included in this factor would be considerations such as the location of the property i.e. is it high up in a block of flats (which obviously presents more of a danger insofar as fire hazards are concerned) or free standing, the number of bathrooms included in the property and the nature of the plumbing and sewerage facilities available.

Practical example

Let us now take into account all of the above and apply it to the case of our potential tenant who is looking to rent a property for himself and six other people, two of these being young children. In this regard, let us consider two scenarios:

In the first instance, let us imagine that the property is a large, free standing house with two spacious bedrooms, 2 bathrooms, a formal lounge, a dining room, a kitchen, an informal playroom and a large garden. In this instance, it would be perfectly reasonable to envisage mom, dad and infant sharing one bedroom, granny and daughter sharing the other bedroom and placing bunk beds in the playroom for the twins. As such, you could easily rent the property to the potential tenant in question.

Now, in the second instance, let us imagine that the property is a small fifth floor flat with two small bedrooms, one bathroom, a kitchen and an open plan living area. In such an instance, from both a practical and health and safety perspective, it makes sense that the property should not be rented to the potential tenant in question.

Conclusion

At this point in time, there are unfortunately no formal legal guidelines governing the rules around maximum occupancy of residential properties in South Africa. As such, a landlord or agent (as the case may be) needs to use his or her discretion and value judgment when putting these limits in place. It is imperative that a lease agreement clearly stipulates the maximum number of occupants that are allowed to inhabit a property (as the TPN residential lease agreement does) so that in the event that tenants breach this clause, they cannot plead ignorance.

Given the trend in other jurisdictions to formally prescribe maximum occupancy guidelines, it may very well be that similar guidelines will be promulgated in South Africa in future. As such, it is important to regularly familiarise oneself with new regulations and the latest municipal bylaws applicable to a specific area. TPN will obviously keep you updated regarding any major changes relating to this issue as and when they occur.

By Kirsten Ronnie | Admitted Attorney, TPN Legal Advisor

TPN PropBay  |  TPN RentBay