LEASE

Sharrock defines lease as a contract whereby one party (lessor)

agrees to give the other party (lessee) the temporary use and
enjoyment of a property or thing, wholly or in part, in return for
remuneration (Rent)
A lease is a contract of letting by the landlord(lessor)and the hiring
by a tenant(lessee)of specified immovable property in terms of this
contract the lessor grants temporary use and enjoyment/occupancy
of the property to the tenant for a period of time in return for money
(rent/share in the fruits of the property) or use.
Havenga recognizes the fact that a lease is as having reciprocity and
defines it as, a reciprocal contract in terms of which one party
( lessor ) undertakes to make temporarily available to another party
(lessee) the use and enjoyment of a thing wholly or in part, in return
for the payment of a sum of money, or a share in the fruits of the
property.

As per De Villiers, a lease can be defined as, a reciprocal contract

whereby the lessor undertakes to provide the lessee with the total or
partial use and enjoyment of the property, for a certain period of
time, against payment of a determined or determinable amount of
compensation by the lessee.

Essentialia

 Specified property or thing

 Temporary use and enjoyment of the property

 For a period

 For rent

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Specified property / thing

 Parties must agree on the particular property

 Movable, immovable, corporeal and incorporeal may be leased.

 Property must be determined or determinable or certain

 Should the description of the property is vague to an extent

that the property cannot be determined, lease would be null
and void.

Temporary use and enjoyment of the property

 Purpose of lease is to obtain the use and enjoyment of certain

specified property

 Parties have to agree on the use and enjoyment of the thing

 Includes the right to use the fruits of the property

 Lease is distinct from the contract of sale, which confers

(gives)the right of ownership.

 Property has to be returned at the end of the agreed period.

 Use is of a temporary nature and if the contract seeks to make

it permanent, this would not be a lease.

For a period

 Use and enjoyment is for a certain / specified period

 Length of contract may be left to the parties

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  The lease must be for a period and not permanently as it would
not be a lease but something else, i.e. a sale

 The period can be indefinite, i.e. when period runs on a month

to month or year to year and is terminated by giving of notice.
This notice period has to be agreed upon.

For rent

 Rent must be paid In money or if parties agree, produce

of the property e.g. fruits

 If performance consist of payment in kind or other than

cash or fruits, then this will not be a contract of lease, i.e.
when parties agree that one will occupy the property in
return of services rendered.

 If parties fail to agree on rent, then there can be no talk

of a lease.
 If parties seek to agree to lease / let to one another free
of charge, this will not be a lease.

DUTIES OF LANDLORD / LESSOR

 Deliver use and occupation or enjoyment of the property /

delivery of the leased property

 Maintain the property

 Not to interfere with the lessee’s use of the property

 Compensate the lessee for improvements

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DUTIES OF THE LESSEE / TENANT

 Pay rent

 Use property for the purpose it was let

 Take care of the property whilst in his possession

 Return the property undamaged

REMEDIES FOR BREACH OF CONTRACT

Ordinary remedies for breach of contract apply, if the breach is

material, the aggrieved party has the choice to either abide by the
lease, sue for specific performance, and claim any damages suffered,
or to cancel the contract and sue for damages.

TENANT

a) The landlord breaches the duty to deliver-this is a material

breach and the tenant may cancel the contract.

b) The landlord fails to maintain the property in proper repair

c) The landlord is in breach of the warranty against interference

d) Huur gaat voor koop(hire takes precedence over sale)

e) Compensation for improvements-see Guide to business law

for examples-pg 114(Shawn Kopel)

LANDLORD
a) The tenant does not pay rent.
b) The tenant misuses the property

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 c) The tenant fails to return the property at the end of the lease
(holds over)
d) The tenant returns the property in a damaged state

THE LESSOR’S LANDLORD’S TACIT HYPOTHEC FOR UNPAID

RENT
The landlord acquires a hypothec over all movables situated on the
property as soon as the lessee of the immovable property falls into
arrears with the rent. This is known as the landlord’s tacit hypothec
and serves as security in respect of such rent. The hypothec is in
operative only as long as the rent is in arrears.
The landlords tacit hypothec extends to all movables brought on to
the property.
Property belonging to a third party is covered by the landlord’s tacit
hypothec, provided such movables have been brought on to the
leased property with their owners consent for the purpose of
remaining there permanently and for the use of the lessee, provided
the third party will give notice to the landlord that the goods in fact do
not belong to the lessee.

THE MAXIM “HUUR GAAT VOOR KOOP”

If a lessor of immovable property sells the property the general rule is
that the purchaser is bound by the lease in accordance with the
maxim ‘huur gaat voor koop’ translated as ‘hire takes precedence
over sale’.

Refers to a House or a farm.

The purchaser therefore cannot evict the lessee, but is obliged to

abide by the terms of the lease, provided that the lessee continues to
pay under the lease contract. The new landlord acquires all of the
rights of the original landlord, but he or she also acquires all of the
duties.

The effect is that the sale of the property cannot prejudice the tenant,
since the buyer at the time of the sale had actual notice of the lease.

EVICTION

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Eviction is a process that is undertaken when the lessor / landlord

wants to remove the lessee from the premises when he / she refuses

to vacate the property or premises.

Vacation of premises occurs when the lessee voluntarily leaves the

property / premises of the lessor.

Eviction may occur as a result that of the following;

(i) The contract between the parties has come to an end

and

the lessee either refuses or is unwilling to vacate the

property of the lessor.

(ii) There is a breach of contract in the contract of lease

between the lessor and lessee necessitating the lessor

to terminate the contract between the parties.

(iii) Eviction from premises when the party was previously

in

lawful occupation and has since been occupying it

unlawfully and is refusing to vacate the premises

In view that the rules of contract apply, no formalities are, therefore,

required.

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An exception is, however, made with regard to a long lease or a

lease for a dwelling.

The contracts referred to have to be in writing.

The lease of dwellings is governed in terms of the Rental Housing

Act, 1999.

This act regulates a lease for housing purposes. As per the act, the

objective of the act is to, ‘ provide for the facilitation of sound

relations between tenants and landlords and lays down requirements

relating to leases.

OCCUPATION OF RESIDENTIAL PREMISES

The Prevention of illegal Eviction and Unlawful occupation of land

Act. 1998 applies strengthens or extends the occupation right of a

lease of residential premises.

This act makes provision for procedure for eviction and therefore

excludes the possibility of an arbitrary or unlawful eviction of a

tenant.

Before a tenant is evicted, section 4 (2) –(7) enjoins a court not to

grant an order for eviction unless a notice of the proceedings have

been have been issued at court and a the notice has been served on

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the occupier and the municipality having jurisdiction.

The order will be granted if the court is satisfied that it is just and

equitable to grant the order based on the following circumstances;

 The rights and needs of the children, elderly or disable persons

and households headed by women.

 If the occupier has been in occupation for more than 6 months

when proceedings were instituted.

The act applies to;

Unlawful occupiers and includes occupiers who at one stage were in

lawful occupation, i.e Mortgagor or a lessee

TERMINATION OF A LEASE CONTRACT

a) Termination by effluxion of time-applies to fixed contracts.

b) Termination by notice

c) Termination by extinction of the lessor’s title

d) Termination by death

e) Termination by Insolvency

f) The lessee’s right to compensation for improvements

g) Renewal of a lease