Select Page

The Magistrates’ Court Act

The landlord’s tacit hypothec gives the landlord the right to attach all movable property, brought onto the property, in order to collect rent arrears. It is a powerful weapon against a defaulting tenant and can secure the landlord’s claim for payment of the rent arrears. The hypothec comes into existence the moment the tenant falls into arrears with the rental payments. An interdict prevents the tenant from removing the goods which have been brought onto the property. However, even when the tenant is in arrears, the landlord has no real right until the goods are attached by a sheriff. Only upon obtaining a court order, on proof that the rent is in arrears, is the hypothec completed.

 

Section 32 of the Magistrates’ Court Act

With reference to Section 32 of the Magistrates’ Court Act (Refer Appendix C), it is important to consider a situation where the tenant claims that the movables that are on the property belong to a third party. This was clarified by the Appeal Court in BLOEMFONTEIN MUNICIPALITY V JACKSONS, LTD 1929 AD 266. The Court held that it is the duty of the owner of the movables to inform the landlord that the tenant is not the owner of said property.

“When goods belonging to a third person are brought onto leased premises with the knowledge and consent, express or implied, of the owner of the goods, and with the intention that they shall remain there indefinitely for the use of the tenant, and the owner, being in a position to give notice of his ownership to the landlord fails to do so, and the landlord is unaware that the goods do not belong to the tenant, the owner will thereby be taken to have consented to the goods being subject to the landlord’s tacit hypothec, and liable to attachment.” ~ Curlewis JA

The practical application of this would involve the issuing of a Rent Interdict Summons, with specific instruction to the Sheriff to compile an inventory of all movables at the premises. It would then be a criminal offence in terms of the Magistrates’ Court Act for the tenant to remove any items under attachment. Once judgment has been obtained, the attached items can be removed and sold in execution by the Sheriff.

(Extract from The Landlord’s Guide)

 

Free Intelligent Legal Document Generator

Save Thousands On Legal Fees

When tenants aren't playing nice, what you do next will set the course of events to follow. By following these guidelines you can generate your own notice documents in minutes.

How Solid Is Your Residential Lease Agreement?

It has already been established in our step-wise guide for Landlords, how a well drafted lease agreement can simplify matters for the Landlord in the event of breach by the Tenant and also help to avoid unpleasant and costly rental disputes. Read: How To Evict A...

read more

Spoliation And Illegal Eviction

Spoliation is usually the first thing that jumps to mind when a landlord is confronted with a problem tenant or illegal occupant. By resorting to creative, illegal tactics to get rid of the problem, a landlord could be putting an informed tenant in control...

read more

How To Evict A Tenant

Tenant Not Paying Rent, Now What? Landlord-Tenant disputes come in many different shapes and forms but to best explain the process a Landlord could follow when a Tenant breaches the lease agreement, let's consider the most common scenario where a Tenant defaults on...

read more

PIE Evictions

Prevention of Illegal Evictions from and Unlawful Occupation of Land Act (PIE) PIE sets out procedural and substantive requirements that must be satisfied before a court may grant an order of eviction. The procedural protection that PIE affords occupants...

read more

ESTA Evictions

Extension of Security of Tenure Act (ESTA) ESTA applies only to occupiers of rural or peri-urban land, whose occupation is, or was, lawful in that they resided on the land with the consent of the owner. Occupiers under ESTA may not earn more than...

read more

Rental Housing Amendment Bill

The Rental Housing Amendment Bill was accepted by the National Assembly on 9 September 2014. It was however recalled for argument after just a few days. The main reason for further argument at this stage was that the committee wanted to do away with the term...

read more

Lease Agreements & The Consumer Protection Act

The Consumer Protection Act 68 of 2008 has considerable impact on lease agreements. The Act has been passed in order to regulate and normalise the relationships between the suppliers of various goods and services and their consumers in the marketplace. In order to...

read more

Rental Housing Act

The Rental Housing Act (RHA) bears specific reference to the termination of the lease agreement. Section 5(5) of the Act states: If on expiration of the lease the tenant remains in the dwelling with the express or tacit consent of the landlord, the parties are deemed...

read more