CHAPTER 20 – OTHER PROPERTY RIGHTS
Landlord and tenant
Definition
Lease is a use right, in the form of either a limited real right or a creditor right, in
terms of which the lessee is entitled to occupy and use the property of the lessor
against payment
A lessee is a user of property, and the nature and content of the right to use the
property are usually described in the lease contract
If there is no clear agreement about that, the right of use is limited to the normal
use of that property in the past or by custom with reference to the usual use of
the property concerned.
Normally, the tenant may not change the nature or destination of the property,
and the property must be returned to the owner at the end of the lease term in
its original condition.
Usually the owner is responsible for the maintenance of the property, but it can
be amended by agreement in the lease
The owner is also responsible for ensuring that the property is in a condition that
makes it reasonably suitable for the purpose for which it is being rented in terms
of an implied contract, which cannot easily be amended by agreement.
The lessee must pay the rent as agreed in the contract of lease.
As soon as the rent in respect of immovable property becomes overdue, the
landlord automatically obtains a silent hypothecate regarding the movable
property of the tenant
Normally, a contract of lease only creates contractual obligations, with the result
that the lessee obtains a creditor right and not a real right in respect of the
object of the lease.
In the case of immovable property, especially residential and commercial
property, it may cause serious problems for the lessee if the landlord sells the
property to someone else, who is not a party to the contract and not bound by it.
To protect the lessee from this possibility, the rule has evolved that an existing
rental is not terminated by a sale
This is known as the “Huur gaat voor koop” rule
This rule means that an existing lessee cannot be evicted by a new
owner of the property, as the new owner is bound by the lease
contract, even though she was unaware of it. This rule forms part of
South African law.
Categories of lease from immovable property
There are 3 categories:
1. Lease of immovable property for a terms shorter than 10 years (short term lease)
2. Lease of immovable property for a term of 10 years or longer (long terms lease –
personal right or real right)
3. Lease of immovable property for a term of 10 years or longer and registered in
the deeds office (registered long term right – real right)
1 short term lease
Creates only creditor's rights, but resembles a real right as soon as the lessee
occupies the leased premise
The contract and all rights arising therefrom will be enforced against new owners
who were aware of the contract as if they were parties to the contract.
Enforcement of the contract against non-parties is based on the doctrine of
notice
This means that the tenant could keep the new owner (who was aware of the
lease before buying the property) bound as if it were closed between them.
The lessee is also protected against all new owners of the property, even though
they are unaware of the lease, according to the rule that an existing lease is not
terminated by a new sale (huur gaat voor koop).
Although the protection to lessee is limited to lessees who are already in
occupation because the lessee acquires a real right upon occupation (based on
the argument that the lessee establishes a real right on occupation), this
approach seems incorrect.
Logically speaking, the fact of physical control cannot create a limited real right in
immovable property
Delivery or control creates only real rights in relation to movables.
Real rights relating to immovable property are usually created by registration.
Due to the cost of registration and practical considerations, short-term leases are
not registered.
Genna-Wae Properties v Medio-Tronics (Natal) 1995 (A)
o The huur gaat voor koop rule is set out as follows:
o The alienation of leased land does not end the rent to an end.
o The buyer of the land is placed in the place of the original landlord by
legal action.
o The new owner obtains all the rights and obligations of the original
landlord, including the obligation to allow the tenant to continue the lease,
provided that the tenant pays the rent and all other obligations under the
lease.
o In turn, the tenant is bound by the lease and as long as the new landlord
recognizes the lease, the lessee cannot withdraw from the lease.
2 unregistered long term lease
The Deeds Registries Act 47 of 1937 describe long term leases as leases for 10
years or longer.
The Formalities In Respect of Lease and Land Act 18 of 1969 provides that
unregistered long term leases are enforced against new owners in two cases only
o Firstly, an unregistered long-term lease is enforced on the basis of the
huur gaat voor koop rule the first ten years of its existence, but no longer
than that. With short term leases, the lessee must already be in
occupation to get the benefit of the rule
o Secondly, an unregistered long-term lease is enforced against new owners
with prior notice of the lease on the basis of the doctrine of notice. In this
case, the lease will be enforced for the entire period agreed upon in the
contract and not only for ten years.
3 Registered long term lease
Create limited real rights and be protected as such.
It is enforceable against any new owner of the property as a real burden, a
limited real right, regardless of whether the buyer of the lease was aware or not.
In this case, the protection of the rent is exactly the same as in the case of any
other registered limited right.
The Rental Housing Act 50 of 1999 now provides that tenants of rental housing
may be evicted only once the lease has been terminated lawfully in terms of the
Act and the lease agreement
Writing is not required for the validity of a short term lease
If lease has been terminated lawfully, the owner can approache the court for an
eviction order
It must be read with section 26(3) of the Const, prohibits arbitrary evictions
Maphango v Aengus Lifestyle Properties 2012
Common law land use rights
a. Partiarian lease
b. Labour tenancy
c. Leasehold
d. Quitrent
A Partiarian lease
Definition
o Special type of lease agreement is applicable to the use of agricultural
land,
o in terms of which the landowner and the lessee agree that the lessee will
farm the land (or part thereof) for payment in the form of a certain
percentage of the crop or produce.
The Partiarian lease is a true lease, which means that the usual principles relating
to lease are applicable.
B Labour tenancy
Definition
o Was previously a common law form of land use of agricultural land derived
from an agreement.
o Part of the agreement provides the labourer the right to use and occupy
the land (a house or even a piece of land) belonging to the employer,
o to occupy and use for purposes as stipulated in the agreement,
o in return for providing labour to the landowner.
In 1996, the new government introduced legislation (the Land Reform Act 3 of
1996) to protect the rights of labor workers, and to enable them to purchase the
land they occupy.
This type of lease occurs only in certain parts of the country.
C Leasehold
Definition
o It can be described as a limited real right to use land for long period. In
most cases the owner of the land held in leasehold is the state
The greatest part of leasehold rights is held by black people, which was
prevented from gaining full ownership on land during the apartheid era.
Part of the current land reform program is aimed at upgrading existing rights in
state land to full ownership.
A number of leaseholds was upgraded to ownership
D Quitrent
Definition
o Is a form of land use which was known to common law, and can be
described as a limited real right similar to a perpetual lease.
o For all practical purposes quitrent is similar to full ownership
This form of land right was used on a limited scale during the apartheid era to
provide blacks with land rights less than full ownership, especially withregard to
surveyed land
Mineral rights
Definition
o Prospecting and mining rights provide their holder with the entitlements to
prospect for minerals on the land, to mine for them and to dispose of the
extracted minerals
o All these entitlements must be exercised within the limits prescribed by the
applicable legislation and with due regard for the rights of the landowner
In the past, the rights to minerals have originated in land ownership.
The landowner was automatically owner of minerals in the land and holder of
mineral rights in respect of the land unless mineral rights were separated from
landownership and transferred to another person.
So mining and exploitation of minerals usually commenced upon separation of
mineral rights, after which different persons could establish rights to prospect for
and mine or exploit minerals.
The Deeds Registry Act provides for different ways in which mineral rights could
be separated from ownership of the land before the minerals are removed from
the land.
Ways on which mineral rights of land ownership could be separated
o Notarial session of mineral rights
o Reservation in a deed of transfer of the land
o Exclusion in a subdivision of the land
o Distribution of mineral rights held in undivided shares
o Reservation in the process of establishing a township on the ground
o Exclusion of a process of land expropriation
o Acquisition of a separate certificate of mineral rights by the landowner
Mineral rights differ from praedial servitudes in that they do not require a
dominant and servient tenement;
They may be held by any person irrespective of ownership of the land.
They also differ from personal servitudes in that they are not restricted to a
particular person and can be freely transferred
In the new dispensation under Act 28 of 2002, mineral rights are systematically
replaced with so-called "new order" rights 2004 Act
These new rights consist mainly of prospecting and mining rights granted in the
form of temporary grants by the state.
The acquisition and exercise of this right is governed by the 2004 Act.
The word "mineral" is used in various statutes and in contracts relating to mining
and mineral rights, and generally speaking, the exact meaning and extent of the
case must be determined in each individual case with reference to the intention
of the legislature or the contracting parties.
This meaning may or may not include, in which case it includes substances such
as clay, river sand or gravel, or scary, in which case it will be limited to a scarce
category of substances such as precious or precious metals.
Minerals are reasonably defined in the Mineral and Petroleum Resources
Development Act 28 of 2002.
Definition of minerals
o The Mineral and Petroleum Resources Development Act 28 of 2002 defines
minerals wide,
o so that it contains materials in a solid, liquid or gaseous form, found
naturally in or on the earth or in water and formed by geological
processes;
o including sand, rock, stone, gravel and clay and minerals found in slag
heaps or deposits,
o but excluding water, petroleum and peat
