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The landlord’s tacit hypothec is a form of a real right recognised in law. The hypothec is understood to be “tacit” because it is implied without being stated, in other words the hypothec comes into effect by operation of law and not by agreement between the landlord and tenant.

However, this right does not accrue to the landlord automatically. In most cases for the Landlord to utilize his hypothec would require him/her to issue and serve upon the tenant a Rent Interdict Summons, stipulating that the tenant is interdicted from removing or causing or suffering to be removed any of the furniture or effects in or on the leased premises which are subject to the landlord’s hypothec for rent until an order relative thereto shall have been made by the Court. This procedure can be applied in the following 2 manners:

1) Section 31[1]application whereby a summons with an automatic rent interdict is issued. A rent interdict prevents the tenant from removing her or his personal belongings over which the landlord has a right for unpaid rent.

2)    Section 32[2] allows for the tenant’s goods to be attached by the landlord deposing to an affidavit. The affidavit must state:-

    1. a) the address of the dwelling;
    1. b) the amount of unpaid rental;
    1. c) that the tenant was given seven days written notice to pay the arrear rental, or
             d) that such demand was made and that the tenant is about to remove the goods from the dwelling to avoid payment of the rental.

The hypothec secures the tenant’s obligation to pay the arrear rental owing to the landlord in terms of the lease agreement. It does this by allowing the landlord to burden or remove the movables present on the leased land.

Importantly, the hypothec does not apply to goods removed from the premises before the hypothec is perfected. In certain instances the movable goods belonging to third parties can also fall under the hypothec, but only to the extent that the movable goods belonging to the tenant are insufficient to satisfy the arrear rental. For this to happen the landlord will have to show that he/she was unaware that they belonged to a third party and that the goods were bought onto the premises for permanent use by the tenant.

In Eight Kaya Sands v Valley Irrigation Equipment 2003 (2) SA 495 (T) the court held that the third party’s goods must be released since their ownership had come to the landlord’s knowledge.

Should the landlord seize goods that belong to someone else and not the tenant, that person will have to approach the court to set aside the order. This is called interpleader proceedings, which can be a costly application and must not be used to mislead the court.

It would be wise to have a written clause that the tenant will inform the landlord of any item belonging to a third party and have these items listed and attached to the lease and amended accordingly.

[1] Ibid at Section 31 of the Magistrates’ Court Act 32 of 1944

[2]Ibid at Section 32 of the Magistrates’ Court Act 32 of 1944

Prepared by:

Ashley Adriaans | Director | Dispute Resolution: Litigation & Arbitration

Dominique Dirks | Candidate Attorney

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)