Chapter 14 - Contract Of Lease Flashcards
Define a contract of lease
A reciprocal contract in terms of which the lessor undertakes to TEMPORARILY make part of whole use and enjoyment of a thing available to the LESSEE in return for a sum of money or share in the fruits of the property.
The requirements of essentialia and naturalia must be met.
Essentialia
- undertaking by lessor
- agreement that lessee use is temporary
- undertaking to pay rent
There must be an undertaking by the lessor to give the lessee use and enjoyment of something.
Agreement that the lesee right to use is temporary
An undertaking of lessee to pay rent
Time period of lease
A contract of lease cannot be of permanent use or enjoyment.
Contracts of lease however DO NOT have to be entered into for a definite period of time.
Eg could be month to month or day to day
Paying rent
Must be a specified sum of money
Exception is that agricultural land the lessee could pay the lessor in an agreed portion of produce.
Amount of rent must be ascertained or ascertainable and may be valued at market related rent or reasonable rents
Formation of a contract
No formalities are required
Exceptions are:
- subdivision of agricultural land
~ long leases of agricultural land must be consented to in writing by the minister of agriculture and land affairs. - formalities in respect to leases of land act
- Renting of houses act - landlord must reduce a lease to writing if requested to do so by a tenant.
THE DUTIES OF THE LESSOR
- deliver leased object to lessee
- maintain leased object in proper condition
- maintain lessee in undisturbed condition
- The duty to deliver leased object to lesee
- free and undisturbed use and occupation
- in proper condition
- The duty to deliver leased object to lesee
- free and undisturbed use and occupation
* in proper condition as at time of contracting and agreed upon.
The duty to maintain the object of lease in proper condition
The lessor may allow ordinary wear and tear.
If the condition of object is in such a defective state that lessee cannot reasonably be expected to accept it, lessee may cancel the contract without giving chance for lessor to repair.
If property falls into defective state during lease then lessee can cancel but only when enough time is given to lessor to repair has not been adhered too.
Lessee may not stop paying rent but can deduct reduction into rent proportional to finished use and enjoyment.
The duty to maintain lessee undisturbed use and enjoyment
Leases are valid even if the lessor is not the owner of the property
- lessor warrant that no one who has a better title to the property will dispossess the property for the lessees use and enjoyment.
Owners can’t do this only lessors
Use and enjoyment can be disturbed by:
- lessor himself - results in breach unless it’s for repairs or inspection
- a third party
- superior forces
Duties of the lessee
pay rent
- proper use can care of object of lease
- return property undamaged on termination of lease
The rights of the lessor
Non payment of rent
Lease of immovable property contains forfeiture Clause which entitles a lessor to cancel the contract and eject the lessee for non payment.
The lessor has a tacit hypothec which includes lessees movable property on the leased premises as security for unpaid rent.
The movable must be attached in terms of a court order, or an interdict must be granted preventing the removal of the movable for the property, for the hypothec to be operative.
The hypothec includes all goods bought into leased premises.
Hypothec does not apply to installment transaction property.
The rights of the lessor
Misuse of the object of lease
Misuse amounts to breach of contract
**The rights of the lessor
Failure to return property
If lessee remains in possession of object of property after lease expires, he commits the Delict of unlawful possession.
Lessor can evict lessee
Rights of lessee
Failure to deliver
Failure to maintain property
Breach of warranty against interference
Failure to deliver
- material and lessee may regard the contract as cancelled and sure for damages.
Failure to maintain
- Depends on the substantial extent to which the property is damaged and need repair
Subletting
Not allowed for rural tenements
This is allowed without lessors consent unless Contract of lease prohibits it.
Subletting in contravention of lease without lessors consent results in the sublease being VOID.
The contract of lease can be cancelled.
If a valid sublease is concluded it is between the lessee and the sublessee.
Sublessee must give up occupation when orginal lease terminates
