The ManicaPost
Trust Maanda
Post Correspondent
THE relationship between a landlord and a tenant is where the landlord leases his or her premises to a lessee for a fee (rent).
The tenant has a duty to pay rent as agreed. If the lessee fails and or neglects to pay rent in breach of the lease agreement, the landlord has several remedies.
One of the remedies available to a lessor is a lien, otherwise known as landlord’s tacit hypothec.
Under this right, a lessor has a right to possess a tenant’s property where a tenant fails to pay rentals, under a landlord’s lien or lessor’s tacit hypothec.
The law permits a landlord to withhold the lessee’s personal property on the leased premises to safeguard payment of his or her rentals where they are in arrears.
This hypothec accrues as soon as the rentals become due and attaches to property belonging to a lessee found on the leased premises.
The landlord’s hypothec extends to property belonging to a third party brought onto the leased premises by the tenant.
Property that is brought for use by the tenant, with the knowledge and consent of the owner and where the goods have been on the premises for an indefinite period and are intended for permanent use by the tenant, is subject to attachment.
The landlord has a right to hold onto the property until the arrear rentals are paid. The landlord is entitled to sell the property to recover his or her rentals, but in that case, he or she is required to follow legal channels.
Tacit hypothec has now been codified in terms of the Magistrate Court Act. Section 34 of the Magistrate Court Act provides for an order of attachment of property to secure payment of rentals.
The landlord or his or her agent makes an affidavit in which they state that an amount of rent is due and in arrear in regard to premises, and that the rent has been demanded in writing for a space of seven days or more, or if not demanded, the deponent believes that the tenant is about to remove property to defeat and avoid payment of rent.
Upon making such an application, the court may issue an order to the Messenger of Court authorising him or her to seize the tenant’s property on the premises, sufficient to satisfy the amount of rent due and subject it to the landlord’s hypothec for rent.
The landlord needs no more than allege that in his or her belief the tenant is removing his or her property from the rented premises in order to defeat the claim for arrear rentals.
He or she needs not provide proof that the tenant is in fact removing his or her assets, but only has to show that he or she has reasonable grounds for the apprehension.
Section 38 of the Magistrate Court Act provides further that where summons are issued, the landlord may include a notice which shall operate as an interdict, prohibiting any person from removing any property from the premises until an order relative to the claim for rent has been made by the court.
This is sometimes called automatic rent interdict.
The landlord needs to show the court that there was a landlord and tenant relationship between himself or herself and the tenant; and that there was outstanding rent.
The landlord needs to give security that satisfies the Clerk of Court for the purposes of the Magistrate Court Act.
The attachment order that the court issues does not automatically lead to execution. It is to restore or preserve so much of the tenant’s property at the rented premises as the value of which would be sufficient to satisfy any judgment of the court for the outstanding rent and costs.
The property remains in the possession and use of the tenant, but he or she may not remove it from the rented premises. The intention is to give effect to the order of court that may be eventually granted to ensure that there are assets sufficient for the rent arrears for attachment in the event of an execution.
A landlord’s hypothec is an encumbrance on the tenant’s property as security for rent.
Before a landlord applies for the Section 34(1) order, he or she already enjoys rights over the tenant’s property through a lien.
The order merely confirms the landlord’s hypothec.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.
