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LAW OF LEASE > Intro to the law of lease > Flashcards

Intro to the law of lease Flashcards

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1
Q

Which case defines a lease contract?

A

Southernport Developments v Transnet.

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2
Q

What is the definition of a lease contract ito Southernport Development v Transnet?

A

The essentials of a contract of lease are that there must be an ascertained thing and a fixed rental at which the lessee is to have use and enjoyment of that thing.

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3
Q

What are the essential elements of a lease?

A
  1. Agreement on the use and enjoyment of the property.
  2. Agreement that the use and enjoyment is to be temporary
  3. Agreement on the rent to be paid.
  4. Formalities.
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4
Q

Which case holds that the subject matter of the lease is not the property itself, but the use and enjoyment thereof?

A

Oatorian Properties v Maroun.

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5
Q

Which cases confirm the position that the lessor need not necessarily be the owner to enter into a valid lease contract?

A
  1. Salisbury Gold Mining Co v Klipriviersberg Estate & Gold Mining Co
  2. Clarke v Nourse Mines
  3. Mighty Solutions v Engen
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6
Q

What is the leased thing?

A
  1. Any corporeal movable or immovable
  2. Let wholly or partially
  3. Must be identified or identifiable
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7
Q

Can an incorporeal be leased?

A

No.

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8
Q

What is the nature of “use and enjoyment”?

A

It is the right to use, to collect fruits but not to consume/destroy.

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9
Q

What cases are authorities on the nature of use and enjoyment?

A
  1. Neebe v Registrar of Mining Rights
  2. Bozzone v SIR
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10
Q

What is the exception to the standard rule that rent must sound in money?

A

The lease of agricultural land, the rent may consist in a quantity or agreed proportion of the fruits of the property. (Partiarian agricultural lease)

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10
Q

What is the standard rule regarding rent?

A

It must sound in money.

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11
Q

What is the case for partiarian agricultural lease?

A

Proud Investments v Lanchem International.

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12
Q

What is an agreement that is not a reciprocal lease contract?

A

A unilateral/gratuitous contract of precarium or commodatum.

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13
Q

What are the ways in which the rental to be paid can be determined in terms of the requirement for ‘Agreement on the rent to be paid’?

A
  1. Must be determined or determinable
  2. Standard acceptable formulae
  3. Nominal rental- depending on intention
  4. Third parties determining the amount
  5. A reasonable rental
  6. A bracketed amount
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14
Q

What is the holding in Oatorian Properties v Maroun?

A
  1. Agreement to the intended use of the property constitutes a material term of the agreement
  2. It is an essential of a lease contract that there be use and enjoyment of a thing during the duration of the lease and that constitutes the substance and subject of the contract
  3. The kind of enjoyment which is conferred by the lease either is or is not stated in the contract. When it is stated, the lessee may not put the thing to a use other than to that stated in the lease.
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15
Q

Which principle does the case of Clarke v Nourse Mines confirm?

A

The principle of estoppel by agreement or contract.

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16
Q

What is the principle of estoppel by agreement or contract?

A
  1. The principle is, that if it is agreed that one shall be tenant to the other, both are estopped from disputing the other’s title as landlord.
  2. The real foundation of the estoppel is the fact of the one obtaining possession and enjoying the possession by the permission of the other. And so long as the one has this enjoyment, he is prevented by the rule of law from turning round and saying his landlord had no right or title to put him in possession.
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17
Q

According to Judge Solomons in Clarke v Nourse Mines, what are the two grounds that the doctrine rests on?

A
  1. The lessor having performed his part of the contract, and having placed the lessee in undisturbed possession of the property, is entitled to claim that the lessee should also perform his part of the contract and should pay him the rent which he agreed to pay for the use and enjoyment of the premises.
  2. The lessee having had the undisturbed enjoyment of the premises under the lease, and having thus had all for which he contracted, it would be against good faith for him to set up the case that the lessor had no right to let him the property.
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18
Q

What are the facts of Salisbury Gold Mining v Klipriviersberg Estate?

A

It was an action to set aside a lease on the ground that the lessor was not the owner of the leased property.

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19
Q

What did the court hold in Salisbury Gold Mining v Klipriviersberg Estate?

A

A lessee who had undisturbed enjoyment of the property could not question the title of his lessor.

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20
Q

What did the court hold in Oatorian Properties v Maroun?

A
  1. Use and enjoyment of the thing is essential to a lease contract, it forms the subject and substance of the lease contract
  2. If the kind of enjoyment conferred by the lease is stated, the lessee may not put the thing to a use other than to that stated in the lease.
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21
Q

What are the facts of Salisbury Gold Mining v Klipriviersberg Estate?

A
  1. Salisbury hired for 50 years a piece of land with a natural pool of water
  2. At the time of entering the lease, both parties were under the bona fide impression that the portion of land leased had been kept out or reserved by the lessor as owner of the land and so it did not come under the proclamation of the farm as a public goldfield
  3. Lessee was informed that the leased land fell within the proclaimed portion of the farm.
  4. Lessee applied for water rights from the Gov because it feared disturbance of its peaceful possession.
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22
Q

What is the holding of Salisbury Gold Mining v Klipriviersberg Estate?

A

Any person can let to another something which belongs to a 3rd party, and it is not open to the lessee to raise the defence that they have discovered that the lessor had no right to enter into a lease contract with them or that the property leased belongs to another person.

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22
Q

What are the facts of Mighty Solutions v Engen?

A

Engen sublet the petrol station premises to Might Solutions which thereafter operated an Engen Service Station there. After main lease ended, Mighty Solutions continued to operate a service station from the premises using Engen’s signage and equipment.

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22
Q

What was the holding of Mighty Solutions v Engen?

A

Common law rule that a lessee cannot dispute lessor’s title does not offend section 39(2) ie., passes constitutional muster.

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23
Q

What are the facts of Neebe v Registrar of Mining Rights?

A
  1. Neebe applied to pass transfer of certain prospecting claims upon which licence money had been paid up to a purchaser, without production of any receipt for licence monies for any period after Oct 1899 (Anglo Boer broke out the next day)
  2. As a result, Neebe did not have beneficial occupation of the claims
  3. Licence money between Sept and Oct 1899 were tendered
  4. Neebe sought remission of rental
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24
Q

What is the principle applied in Neebe v Registrar of Mining Rights?

A

Lease confers right to use of the land, therefore:

  1. Lessee is obliged to preserve the land and restore it uninjured at the time of the lease (no right to destroy and appropriate substance of the thing hired)
  2. Right to enjoy the benefit of its use and to take its fruits.
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25
Q

What are the facts of Bozzone v SIR?

A
  1. Bozzone entered into a contract whereunder they were accorded the right to occupy a certain plot of land belonging to the council and the right to ‘dig, work and obtain stone, gravel and sand and other like materials.’
  2. Contract was described as a lease for 20 years
  3. Consideration was monthly rental and certain royalties.
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26
Q

What principle was applied in Bozzone v SIR?

A

A true lease confers on the lessee the right to enjoyment of another’s property without destroying its substance (ius fruendi) but not ius abutendi (right to consume or use up the subject-matter of the contract).

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27
Q

What did the court hold in Proud Investments v Lanchem International?

A

An essential element of a lease contract of things is that the rent agreed upon by the parties should be fixed in a definite amount or be determinable by a 3rd party in accordance with the maxim: if something is capable of being made certain, it should be treated as certain.

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28
Q

What did the court hold in Jordaan v Verwey?

A
  1. Practical considerations are decisive
  2. Difference between lease agreements and other agreements relating to use and enjoyment of IP lies in the rule relating to the nature of consideration payable
  3. Rule is still part of our law because to hold otherwise would be contrary to public policy that they should find themselves in a position different from that which they thought they had agreed to.
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29
Q

What are the facts of Rubin v Botha?

A

Parties had entered into a lease agreement under which the lessee was to have use and occupation of the defendant’s property for 10 years without payment of rent and was to erect a building there on which at the expiration of that period was to become the property of the defendant.

30
Q

What is the holding of Rubin v Botha?

A

Lessee was entitled to be paid for the improvements to the extent to which the value of the defendant’s farm had been improved thereby, less the value of the lessee’s use and occupation for 3 years.

31
Q

What did the court hold in Hurwitz v Table Bay Engineering?

A
  1. Court is allowed to step in and quantify the price
  2. Party whose performance has been quantified by the court may elect whether or not to abide by the contract in the light of the Court’s determination
  3. Acceptance of the court’s determination= binding
  4. Power of the court has survived the statutory prohibition of the laesio enormis.
32
Q

What did the court hold in GENAC Properties v NBC Admin?

A
  1. Whether you can put “rent will be a reasonable rental” is debatable
  2. Question is moot
  3. Kerr- going rate
33
Q

What are the facts of Totoyi v Ncuka?

A

Lease for 21 years with no rent fixed after the first 4 years stipulated that after that rent was to rise but not extend beyond 4 pounds per annum gradually.

34
Q

What did the court hold in Totoyi v Ncuka?

A

An agreement of lease is not concluded until either the rent is fixed or some means of ascertaining is provided.

35
Q

What are the facts of Van Rooyen v Baumer?

A

Lessee brought an application compelling their lessor to provide, connect and instal a gas, coal or electric stove or other cooking apparatus in working order in the kitchen.

36
Q

What was Van Rooyen v Baumer about?

A

What fixtures are.

37
Q

What is the principle applied in Van Rooyen v Baumer?

A

Whether an article that is originally movable has become immovable through annexation, consider:

  1. Nature of the particular thing
  2. Degree and manner of its annexation
  3. Intention of the person annexing it (permanency).
38
Q

What is Levy v Rose about?

A

Making property available on due date.

39
Q

What are the facts of Levy v Rose?

A
  1. It was a 5 year commercial lease and lessee paid 3 months’ rent in advance;
  2. At the time of the agreement, premises were not completed and the lessor agreed to give occupation at a certain date, date arrived and premises not completed, extended again;
  3. Extended time expired, lessor gave lessee keys
  4. Lessee ultimately vacated due to not having an occupation licence.
40
Q

What is Tshandu v City Council JHB about?

A

Previous tenants no longer entitled to be on the premises must be evicted.

41
Q

What is the principle in Tshandu v City Council JHB?

A

Duty to give vacant possession rests on the lessor and is intertwined with duty of commodus usus of the property let.

42
Q

What is Bourbon-Leftley v Turner about?

A

Removal of goods which interfere with lessee’s use and enjoyment.

43
Q

What are the facts of Bourbon-Leftley v Turner?

A

Lessee left a large heavy stove on the leased premises after exiting the lease. Lessor sought payment of rent until the expiration of the lease.

44
Q

What is the principle in Bourbon-Leftley v Turner?

A

Lessee’s liability to pay rent ito a lease does not terminate on the date of breach, cancellation or expiration but on the date that the lessee quitted the premises.

45
Q

What is Poynton v Cran about?

A

Structure fit for purpose upon occupation.

46
Q

What are the facts of Poynton v Cran?

A
  1. Lease of a hotel with the trade and other fixtures and fittings at a certain rental without any deduction whatever
  2. Water-heating apparatus was defective when lessee took possession, lessee effected repairs and claimed the cost of repair which was less than the rent claimed in the counterclaim.
47
Q

What is the principle in Poynton v Cran?

A

If the lease agreement is silent as to repairs, then it rests on the lessor and it lies upon the lessor to satisfy the court that they have been relieved from this obligation by the terms of the agreement.

48
Q

What are the facts of Harlin Properties v LA Hotel?

A
  1. Dispute as to the responsiblity for the maintenance of the hotel premises in a proper state of repair
  2. Lease contained a clause imposing structural repairs on lessee, lessee signed but was not agreeable to accept the premises and added a qualification rejecting clause, lessor signed the lease with qualification.
49
Q

What is Nanucci v Wilson about?

A

Knowledge results in liability damages.

50
Q

What are the facts of Nanucci v Wilson?

A

Lessor let a building knowing that there was a defect in the roof, and the roof in consequence of this defect leaked and the lessee’s goods were damaging.

51
Q

What is the principle in Nanucci v Wilson?

A

Where the landlord by common law is bound to repair, it is necessary, before he is held liable for damages, to show that there was knowledge in the lessor of the defect or ought to have been.

52
Q

What is Ntshiqa v Andreas Supermarket?

A

Remission of rent.

53
Q

What are the facts of Ntshiqa v Andreas Supermarket?

A
  1. Lessor cancelled agreement because non-payment of rental and sought a declaratory order and eviction.
  2. Lessee refused to pay December’s rent contending that it was entitled to remission of rent because of the lessor’s failure to provide toilet facilities on the premises as promised and his interference with the electricity supply to the premises, which caused a substantial loss in the turnover of the lessee’s business.
54
Q

What are the principles in Ntshiqa v Andreas Supermarket?

A
  1. Lease is a reciprocal contract which yields the exceptio defence
  2. Principle of reciprocity gives rise to a right to withhold one’s performance until the other party has himself performed or tendered performance.
55
Q

What is Mpange v Sithole about?

A

Duty to maintain/SP.

56
Q

What are the facts of Mpange v Sithole?

A

Lessor agreed to divide a warehouse into residential apartments for the 113 occupants by the erection of brick walls. Lessor did not do so, and the occupants lived in the building as tenants in rooms separated by board partitions in illegal, unsafe and unhygienic conditions.

57
Q

What is Hunter v Cumnor about?

A

Imputed knowledge/SP.

58
Q

What are the facts of Hunter v Cumnor?

A

Leased premises leaked which damaged lessee’s stock of books, lessee reported to lessor and lessor agreed to fix it.

59
Q

What are the principles in Hunter v Cumnor?

A
  1. Lessor’s presumed/actual knowledge of the defect is the basis of a lessor’s liability for consequential damages arising out of a defect in the leased premises.
  2. In the absence of such knowledge (actual/tacit) , lessor incurs no liability for damages
  3. Knowledge of defect + failure to remedy = liability
  4. Mere knowledge with no opportunity to act on that knowledge towards remedying the defect would not render lessor liable for damage flowing from the unremedied defect.
60
Q

What is Treasure-Chest v Tambuti Enterprises about?

A

Opportunity to fix.

61
Q

What are the facts of Treasure-Chest v Tambuti Enterprises?

A
  1. Roof of leased premises was leaking and lessee tld lessor and something was done about it but still the roof leaked
  2. Lessee ultimately vacated.
62
Q

What is the test set out by Treasure-Chest v Tambuti Enterprises?

A
  1. Whether the leaking caused a substantial interference with the lessee’s commodus usus (matter of degree and duration)
  2. Whether the owner was aware of the leaking roof
  3. Whether the owner had had a reasonable opportunity to stop the leaking before the lessee vacated (depends upon the circumstances).
63
Q

What is Shapiro v Yutar about?

A

Opportunity to fix.

64
Q

What are the facts of Shapiro v Yutar?

A
  1. In an action for rent, lessee counterclaimed for damage caused to his furniture by a leaky roof
  2. Lessor only recently acquired the premises, whereas the tenant had been in occupation for a number of years and knew that every year the roof had required repair.
65
Q

What is the principle in Shapiro v Yutar?

A

General rule is that a lessee is not justified in abandoning entirely the lease, if repairs could be effected within a reasonable time, and if the lessor is willing to do them, they may be entitled at a remission of a rent for the time that the premises are unrepaired, but they are not entitled to terminate the lease.

66
Q

What is Soffiantini v Mould about?

A

Duty to refrain.

67
Q

What are the facts of Soffiantini v Mould?

A
  1. Lessor entered lease premises occupied by lessee without permission and interfered with amenities available to lessee as occupier of the premises
  2. Commercial lease-hairdressing business
  3. Lessor prevented fixing of the lift.
68
Q

What did the court hold in Soffiantini v Mould?

A
  1. Lessor is obliged to guarantee detentio of the property leased with all its accessories and vacuo possession with commodus usus
  2. Lessor entering leased premises without permission constitutes trespassing and affords lessee interdict.
69
Q

What is the Aggouras v MacFarlane case about?

A

Spoliation.

70
Q

What happened in Aggouras v MacFarlane?

A

Lessor locked the bathroom door (toilet and gas meter).

71
Q

What is Dias v Lawrence about?

A

Damages.

72
Q

What are the facts of Dias v Lawrence?

A
  1. Lease of a coffee stall for 6 months.
  2. Lessee took possession and duly paid rent but 7 days late, lessor wrongfully, unlawfully and without lessee’s permission took possession of the said coffee-stall, whereby and by reason of such wrongful acts of of the lessor, lessee suffered damages.
73
Q

What is Mackay v Theron about?

A

Repairs/Urgent/Notice.

74
Q

What are the facts of Mackay v Theron?

A
  1. Lessor intend making alterations to the property without having consulted lessee and lessee protested against any alterations
  2. Lessor responded that it was too late to do anything as alterations had already commenced
  3. Monthly tenancy
75
Q

What are the principles in Mackay v Theron?

A
  1. If repairs are urgently necessary and cannot be properly made while tenant remains in occupation of the premises, lessor may require lessee to vacate the premises without becoming liable for damages for breach
  2. Lessee can prevent lessor from making repairs if not necessary or if need for repairs is not so urgent that the lessor could not wait until the expiry of the lease.

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