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Article by Meegan Henkeman of Schoeman Tshaka Attorneys

A landlord enjoys special protection in terms of the collection of arrear rent (ie where the tenant does not pay) from his/her tenants (“lessees). This special protection is known as a landlord’s hypothec. This is a common law remedy and in addition to any contractual remedies, which basically entails that a landlord is authorised to attach the movable property of the tenant to secure payment of the arrear rent.

A landlord’s hypothec operates against moveables brought onto the leased premises for permanent use by the lessee, this is irrespective of whether the landlord was aware of its presence or not. The hypothec relates only to moveables which are on the leased premises at that date and operates for as long as the rental is in arrears ( i.e remains unpaid). The landlord can only “exercise” the hypothec against the property once he/she has obtained authorisation to do so via a Court Order. Therefore before such an Order has been obtained, the tenant is free to remove the moveable property from the premises at any given time. On attachment the landlord acquires a real right of security and is thus entitled to prevent the removal of the property from the leased premises. The landlord can therefore have the property sold in a sale of execution.  The proceeds of the sale in execution is used for the satisfaction of the landlord’s claim for arrear rental.

In certain circumstances, the hypothec operates against the property of third parties which is brought onto the leased premises. In order to succeed in proving that the landlord’s hypothec operates over the property of a third party, the lessor has to prove the following;

(1)  That the goods were on the leased premises with the knowledge and consent of the third party;

(2)  That the lessor was unaware of the fact that the goods are owned to the third party;

(3)  That the goods were brought onto the premises for the use of the lessee; and

(4)  That the goods were intended to remain on the premises indefinitely.

 

The Magistrate Courts Act 32 of 1944 (“the Act”) provides the process which landlord’s must follow to apply the hypothec as a remedy:

 Section 31 of the Act relates to an automatic rent interdict:

(1)  When a summons is issued in which is claimed the rent of any premises, the plaintiff may include in such summons a notice prohibiting any person from removing any of the furniture or effects thereon which are subject to the plaintiff’s hypothec for rent until an order relative thereto has been made by the court.

(2)  the messenger shall, if required by the plaintiff and at such plaintiff’s expense make an inventory of such furniture or effects;

(3)  such notice shall operate to interdict any person having knowledge thereof from removing any furniture or effects.

This is commonly known as an arrear rental summons wherein an automatic rent interdict is included. Service of the summons on the tenant would bring the hypothec into effect.

Section 32 of the Act relates to the attachment of property in security of rent:

(1)  Upon an affidavit by or on behalf of the landlord of any premises situate within the district, that an amount of rent not exceeding the jurisdiction of the court is due and arrear in regard to the said premises, and that the said rent has been demanded in writing for the space of seven days and onwards, or, if not so demanded, that the deponent believes that the tenant is about to remove the moveable property upon the said premises, in order to avoid payment of such rent, and upon security been given to the satisfaction of the clerk of the court to pay all damages ,costs and charges which the tenant of such premises, or any other person ,may sustain or incur by reason of the attachment hereunder mentioned, if the said attachment be thereafter set aside, the court may upon application, issue an order to the messenger requiring him to attach so much of the moveable property upon the premises in question subject to the landlord’s hypothec for rent as may be sufficient to satisfy the amount for such rent, together with the costs of such application and of any action for the said rent.

The above section empowers a landlord to attach and simultaneously to remove the tenant’s moveables from the leased premises in security for the arrear rental. This application has to be supported by an affidavit from the landlord stating; the amount of rent which is due and in arrears in regard to the premises, despite written notice demanding payment of the rental within 7 days of delivery to the tenant, such arrear rental remains unpaid or the landlord believes that the tenant may abscond in order to avoid paying the arrear rental.

The application for arrear rental may also be brought in terms of Rule 56 as an ex parte application i.e. an application without prior notice to the tenant. There must be sufficient reason to use the ex parte procedure, thus being that notice to the respondent would defeat the object of the application.

Conclusion:

Where arrear rental is claimed the landlord has to allege and prove that he/she has complied with his or her obligations in terms of the lease agreement, and that the tenant is in arrears with the rental. The onus lies on the tenant to prove payment thereof. It is important that wherein instances where no place of payment is specified, the common law rules as to place of payment comes into existence. This means that if the tenant has undertaken to pay the rent within a specific period of time, the tenant has to either tender or pay the money to the landlord on or before that specific day in order to avoid a breach of contract.

 

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