Obligations of the lessee, and the remedies of the lessor on breach

Question 1

What are the obligations of the lessee?

Answer 1

1. To pay the rental
2. To take care of the property and to use it only for the purposes leased
3. To restore the property upon termination of the lease in the same good order and condition it was received.

Question 2

What is the duty to pay rent in the case of joint leases?

Answer 2

Lessees pay their pro rata share of the rent.

Question 2

What if the place of payment is not stipulated in the contract?

Answer 2

The rent must be paid at any convenient place where the lessor may lawfully perform the contract, but the lessee bears the risk of the chosen method failing.

Question 3

What is the time of payment if it has not been fixed?

Answer 3

Rent is payable after the end of the lease, after use and enjoyment has been had.

Question 4

What happens if there is a minor breach ito failure to pay?

Answer 4

In periodic or hybrid leases notice may be given or alternatively lessor must give a notice of a right to cancel if the breach is not rectified.

Question 5

What is the lessor’s hypothec for arrear rent?

Answer 5

A quasi-real right of security that the lessor has, on a contingent basis, in the movable property of the lessee which allows the lessor, subject to certain conditions, to attach and to sell off the movable property of a lessee to recover arrear rent.

Question 6

What is the leading case for the lessor’s hypothec for arrear rent?

Answer 6

Webster v Ellison.

Question 7

What are the requirements for the lessor’s hypothec?

Answer 7

1. Lessee must in fact be arrears with rent
2. Hypothec must be perfected by the lessor complying with the relevant legal and procedural requirements to perfect the hypothec.

Question 8

What are the requirements of the legal and procedural requirements to perfect the hypothec?

Answer 8

1. Lessor can apply for an automatic rent interdict ito either the common law (HC) or section 31 of the Magistrates Courts’ Act.
2. Lessor must get an attachment more either by the common law (HC) or section 32 of the Magistrates Courts’ Act.

Question 9

What is the purpose getting an automatic rent interdict?

Answer 9

Serves as notice to prevent anyone removing the tenant’s property.

Question 10

What property may be subject to the hypothec?

Answer 10

1. Invecta et illata
2. Property of the sub-lessee maybe attached only to the extent that a sub-lessee is in arrears
3. Third party’s property may be attached only of the thrid party consented to the property being on the leased premises with the intention that they be kept their indefinitely for the use of the lessee.

Question 11

Can goods subject to a credit agreement be attached?

Answer 11

No ito section 2 of the Security by means of Movable Propety Act.

Question 12

Can a lessee avoid the hypothec?

Answer 12

Yes in terms of the doctrine of hot pursuit. If before an interdict or attachment order is executed, the lessee removes the goods from the premises, however goods i transit can nevertheless be attached ito the doctrine.

Question 13

Which cases deal with the doctrine of hot pursuit?

Answer 13

1. Webster v Ellison
2. Ex Parte Coull.

Question 14

Which cases deal with the duty to take care of the property and to use it only for the purposes leased?

Answer 14

1. Burns v D & G
2. Malan v City of Cape Town.

Question 15

What is the duty to restore the property upon termination of the lease in the same good order and condition it was received?

Answer 15

To leave the property vacant, without alteration and in full and undamaged condition with fair wear and tear accepted.

Question 16

Which provision of the RHA confirms the common-law duty for complete restoration of the use and enjoyment initially, with accessories, but less fair wear and tear?

Answer 16

Section 5(3)(o) of the RHA.

Question 17

Is the tenant responsible for damage caused by unassociated third parties?

Answer 17

Yes, unless they can prove that the injury was not caused by their negligence or wrongful act (Eensaam Syndicate v Moore).

Question 18

Which case deals with the liability of a lessee for damage caused by unassociated third parties?

Answer 18

Manley Van Niekerk v Assegaai Safaris.

Question 19

What is the remedy in the case of failing to restore?

Answer 19

1. In commercial leases: eviction order with no further requirements met (Brisley v Drotsky)
2. In residential leases: requirements of section of PIE have to bet met before an eviction is granted.