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The Magistrates’ Court Act

The landlord’s tacit hypothec gives the landlord the right to attach all movable property, brought onto the property, in order to collect rent arrears. It is a powerful weapon against a defaulting tenant and can secure the landlord’s claim for payment of the rent arrears. The hypothec comes into existence the moment the tenant falls into arrears with the rental payments. An interdict prevents the tenant from removing the goods which have been brought onto the property. However, even when the tenant is in arrears, the landlord has no real right until the goods are attached by a sheriff. Only upon obtaining a court order, on proof that the rent is in arrears, is the hypothec completed.


Section 32 of the Magistrates’ Court Act

With reference to Section 32 of the Magistrates’ Court Act (Refer Appendix C), it is important to consider a situation where the tenant claims that the movables that are on the property belong to a third party. This was clarified by the Appeal Court in BLOEMFONTEIN MUNICIPALITY V JACKSONS, LTD 1929 AD 266. The Court held that it is the duty of the owner of the movables to inform the landlord that the tenant is not the owner of said property.

“When goods belonging to a third person are brought onto leased premises with the knowledge and consent, express or implied, of the owner of the goods, and with the intention that they shall remain there indefinitely for the use of the tenant, and the owner, being in a position to give notice of his ownership to the landlord fails to do so, and the landlord is unaware that the goods do not belong to the tenant, the owner will thereby be taken to have consented to the goods being subject to the landlord’s tacit hypothec, and liable to attachment.” ~ Curlewis JA

The practical application of this would involve the issuing of a Rent Interdict Summons, with specific instruction to the Sheriff to compile an inventory of all movables at the premises. It would then be a criminal offence in terms of the Magistrates’ Court Act for the tenant to remove any items under attachment. Once judgment has been obtained, the attached items can be removed and sold in execution by the Sheriff.

(Extract from The Landlord’s Guide)


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