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Tacit hypothec – right of the landlord over property

Eviction lawyers exists to protect all parties, not only tenants. Apartheid-era abuses and, more recently, slum landlords and hijacked buildings have given property owners a bad name, but everyone is entitled to the right to enjoy their property and to be protected from abuse, regardless which side of the lease contract they represent. This article examines the landlord’s tacit hypothec.

The “Tacit hypothec”

If a tenant falls into rent arrears, common law grants the landlord “tacit hypothec” over the tenant’s goods on the property. What does this mean in plain English? “Hypothec” is an old term, dating back to the 16th century and having its origins in French, which has survived in legal jargon and means “a right established by law over a debtor’s property that remains in the debtor’s possession”. Tacit means “implied” or “understood without being stated”.

When might the landlord’s tacit hypothec apply?

The provision for tacit hypothec is enshrined in Section 32 of the Magistrates’ Courts Act, because most rental claims are heard in the Magistrate’s Court, not the High Court. Section 32 allows a landlord to apply for the attachment and, in certain circumstances, for the removal of a tenant’s movable goods in the leased premises, in lieu of rent owed. A landlord may choose to invoke Section 32 because it can be more effective than a rent interdict summons. Understandably, tenants will not want to see their possessions impounded and may respond more swiftly to this threat than to an interdict for payment of arrears.

How does the landlord’s tacit hypothec work?

The landlord applies to the Magistrate’s Court for an attachment under Section 32 in securitatem debiti – in other words, to secure the debt. However, if there is reason to suspect the tenant might abscond with the goods, the landlord can request an immediate order. This allows for removal of goods as security for unpaid rent without giving notice, because such notice could result in the tenant removing things in advance, thus rendering the landlord’s tacit hypothec worthless.

Can the tenant appeal?

The short answer is no. Only final judgements can be appealed, and a Section 32 order is not considered a final judgement. It serves only to preserve the landlord’s security for rental, pending the finalisation in the subsequent action.

Burden of proof for the tacit hypothec

It is the landlord’s responsibility to prove grounds for a Section 32 order. If the application is opposed and a dispute arises, resolution is based on the balance of probabilities. If this fails, there must be substantial doubt regarding the landlord’s case for the attachment to be set aside. Therefore, the landlord’s right to enjoy the rental income from a property is protected, but that right may not be abused by invoking Section 32 without due cause. In this way common law seeks to treat all parties equitably.

Still have queries about the landlord’s tacit hypothec?

We’ve tried in this short article to explain the landlord’s tacit hypothec in terms landlords and tenants can understand. The law concerning Section 32 is more complex than we have room for here, and we would be happy to discuss your case with you in detail. Cape Town Attorneys SD Law & Associates are property and eviction lawyers in South Africa. We have an intimate knowledge of the legislation and can make sure your rights are protected, whether you’re a landowner or an occupier. If you are in rent arrears and think you may be subject to a Section 32 order, or if you’re a landlord with unpaid rent and you would like to take action, we can help. Contact Cape Town lawyer Simon on 086 099 5146 or email

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Lease agreement – How to end it with Dignity

How to end your lease agreement with dignity

Lease agreements – Like any relationship, tenants and landlords may start off thinking the world of each other, but something as simple as a noise complaint or late payment can bring things to an end.

Lease agreement, how to end it with dignity

When either party breaches the lease contract it means that they have failed to perform any term of the contract without a legitimate legal excuse. For example, the landlord decides to sell the property before the lease expiry date. Or a tenant vacates the property without notice or payment.

There are countless reasons why tenants or landlords may decide to end the lease agreement. While the reasons may differ, the course of action that follows should be dealt with sensitively to avoid lengthy legal procedures and costs.

How to cancel a lease agreement:

  • Check the notice period. This should be outlined in your lease agreement.
  • Deliver the written notice and discuss why you need to cancel the agreement. If both parties are in agreement ensure that the notice is signed. Clearly indicate the date the property needs to be vacated by.
  • Do a property inspection together and distinguish between wear and tear and actual damages.
  • The deposit should then be returned to the tenant, minus the cost of damages agreed to. Proof of the repair costs is also recommended.
  • All keys should be returned to the landlord.

In an ideal world every lease agreement would be canceled with both parties happy. Unfortunately, this is very rarely the case. In which case both parties should be aware of their rights.

What steps to take when either party breaches the lease and the situation cannot be reconciled?

Start by reading through and understanding the agreement both parties signed, with specific focus on the cancelation clause. Lease agreements come in all shapes and sizes and may vary, but the contract underlines your rights and will help you choose the right course of action.

What a tenant can and cannot do:

  • A tenant may give a month’s notice or 20 business days. Should 20 business days’ notice be given the tenant may be liable for cancellation fees.
  • A tenant may continue living in the property until the lease expires as long as he/she has not breached the lease agreement. This includes change of ownership.
  • The tenant may not use the property for any other purpose than what is stipulated in the lease agreement. For example, run a business without consent from the landlord.
  • The tenant may not make changes to the property unless agreed with the landlord.
  • The tenant may not sublet the property without permission from the landlord. For example, renting out an additional bedroom to a third party.

What a landlord can and cannot do:

  • A landlord may decide to evict a tenant, but can only do so if the correct eviction process has been followed and a court order is obtained.
  • A landlord in possession of an eviction order cannot remove tenants from a property. The court sheriff is responsible for doing this.
  • The landlord cannot refuse the tenant access to the property by changing the locks, for example.
  • The landlord may not enter the premises without permission and remove furniture as a form of payment.

Whether you’re beginning, renewing or ending a lease agreement come December or January, we hope you feel more equipped to handle the process.

Need help with your lease agreement?

For tailored advice on how best to handle your process, we are here to assist you in every possible way.

We are available to take your call 24/7 – +27 (0) 87 550 2740

Contact us

It is always best for the Landlord to take the correct legal procedure as early as possible to avoid delays and complications later on.

Contact us now about evicting your illegal occupier. Learn more about Eviction Lawyer Simon Dippenaar.

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Consumer Protection Act & Rental Agreements Explained

What is the Consumer Protection Act

Consumer Protection Act and Rental Agreements are governed not only by the Rental Housing Act, but also by the more recent Consumer Protection Act.

Consumer Protection Act

Landlords and tenants – Consumers and suppliers

Tenants and landlords, why does the relationship turn acrimonious? Usually it’s because each party thinks the other is abusing the tenancy agreement. “My landlord never gets round to doing repairs.” “My tenant never pays the rent on time.” And so on. Both tenant and landlord have rights protected by law; and they both have a duty to act responsibly in upholding the lease.

These rights and responsibilities are set out in the Rental Housing Act (1999). But did you know that the Consumer Protection Act (CPA) also applies to lease agreements? The landlord is considered the supplier and the tenant is deemed to be the consumer.

Implications for landlords

So what does this mean for landlords? Section 14(2)(b) of the Act says that ‘despite any provision of the consumer agreement to the contrary – the supplier may cancel the agreement 20 business days after giving written notice to the consumer of a material failure by the consumer to comply with the agreement, unless the consumer has rectified the failure within that time.’

In effect, regardless of the terms of the lease surrounding notice period, if a tenant is in breach of the rental agreement, the landlord has the right to cancel the contract. In other words, if the rent is not paid, or if other terms of the lease are contravened … for example the property is sublet without permission … the landlord can give the tenant 20 business days’ notice to quit.

Tenants are protected by the Act … up to a point

So far so good, but like all legislation it’s not quite that simple. Consumers, in this case tenants, also have the right to fair treatment under the law and this means that they are granted an opportunity to rectify the breach within the 20 business days they have been given. So as long as the tenant pays the outstanding rent or ceases to sublet the property (or whatever the infringement was) within the 20 days, the law considers the breach to have been rectified and the tenant’s right to occupy the property legally restored.

Persistent breaches

Both of these provisions are pretty straightforward. So let’s consider a situation that is not quite so clear. What happens if a tenant is regularly and consistently in breach of the lease agreement but repeatedly rectifies the breach on, say, the 19th day of the 20-day period?

Perhaps the rent is always paid just in time to avoid eviction, or the lease is infringed in myriad different ways each month but always put right at the last minute? What are the landlord’s rights in these circumstances? On this point the CPA is not specific, and has not yet been tested in case law.

But at Simon Dippenaar & Associates we believe that a cycle of persistent and repeat violations which are then rectified does not constitute rectification at all. It is provocative behaviour, either deliberate or otherwise, and evidence of an unwillingness to comply in a reasonable manner with the lease agreement. In this situation landlords may be within their rights to give refractory tenants their marching orders.

Unsure where you stand?

Every situation is different and it is impossible to give a hard and fast rule of thumb for cases like these. Housing legislation is complex. If you are unsure of how the Consumer Protection Act applies to you, either as tenant or landlord, contact Simon to discuss your specific circumstances.

For tailored advice on how best to handle your eviction process, we are here to assist you in every possible way.

We are available to take your call 24/7 – +27 (0) 87 550 2740

Contact us

We can advise you on the best approach for you to hold your tenant to account. It is best for the Landlord to take the correct legal procedure as early as possible to avoid delays and complications.

Contact us now about the Eviction process. Learn more about Eviction Lawyer Simon Dippenaar.

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Opposed Eviction

Opposed Eviction Explained

Opposed eviction and eviction has become an increasingly topical issue in South Africa.

Evictions affect landlords as well as occupants, and there are many far reaching consequences for both. It is a sensitive topic that has to be navigated circumspectly.

Landlords seeking to have illegal occupiers evicted need to deal with all the necessary requirements imposed by statute, and case law.  On the other hand, occupants that are at risk of being evicted need to know their rights.

Opposed Eviction Explained South Africa

Opposed Eviction versus Unopposed

The term ‘opposed eviction’ simply refers to where an occupier resists the eviction by instituting counter legal measures. ‘Unopposed eviction’ by contrast is where the occupier does not resist the eviction process, but merely allows it to take its course.

The Applicable Law

In post-apartheid South Africa, constitutional and statutory obligations were introduced to create a balance between what is just and equitable for land owners as well as for unlawful occupiers, and this legislation has been further developed in case law.

The Constitution

In a nutshell, Section 26 of the Constitution of the Republic of South Africa entrenches the right to adequate housing, and stipulates that no one may be evicted arbitrarily.

This is a move away from forced evictions of the apartheid era and the skewing of power towards landlords that was the norm.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998

This piece of legislation – commonly referred to as PIE – deals with illegal evictions, and requires certain criteria to be met before an eviction order can be granted. This Act is designed to prevent arbitrary evictions, and actually works in tandem with Section 26.

PIE is not only applicable to the state, but also applies to private owners. Essentially, it was intended to apply to illegal squatters, but case law has extended the rights afforded to illegal squatters to illegal occupiers on private property.

The case law developed over the years has made inroads into private evictions by extending the application of law pertinent to squatter evictions. The two aspects have become enmeshed, making the process of private evictions more onerous and complex.

Key Points

The take-home message, for both landlords and occupants, is that while there are a number of rights attached to landlords and occupiers, there are also a number of requirements that have to be met. Failure to comply with these requirements can have a severe impact, and accordingly set one’s case back severely.

Some of the requirements are:

Notice must be given within fourteen days of the hearing, and must include:

  • Notice that proceedings have been instituted;
  • The date of the hearing;
  • Grounds for the proceedings; and
  • Advising of the right of appearance.


Courts consider the length of occupation in the case of a private owner.

If the illegal occupation has been for less than six months, an eviction order would only be granted if it is “just and equitable” and, “after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.”

If illegal occupation has been ongoing for more than six months, besides being “just and equitable”, there is an additional aspect of “whether land (or alternative accommodation) has been or can reasonably be made available … for the relocation of the unlawful occupier.”

An exception is “where the land is sold in a sale of execution pursuant to a mortgage.”

Urgent Applications

An urgent application may be instituted where there is imminent harm “to any person or property if the unlawful occupier is not forthwith evicted from the land,” or where “the likely hardship to the owner or any other affected person exceeds the likely hardship to the unlawful occupier,” or where no other effective remedy is available.

It is important to know what would be regarded as imminent harm, and even these can vary from case to case, depending on particular circumstances.


There are numerous pitfalls in any eviction procedure.

For property owners, the trick is that all the necessary steps have to be followed; otherwise the eviction process fails for non-compliance, and may then be held to be illegal.

This not only means that the eviction fails, but the landlord will lose legal fees, and incur any of the occupier’s legal costs. It also opens the landlord to the possibility of damages, and of course there would be no resolution to the problem.

For occupiers, a clear knowledge of their rights is essential to obviate illegal evictions.

It must be stressed that a landlord is legally prohibited from taking the law into his own hands. He cannot:

  • Disconnect the electricity or water
  • Enter the premises without permission
  • Change the locks
  • Remove the occupier’s possessions
  • Prevent the occupier from entering the premises,

In short, he cannot take any action to evict the occupier without the backing of the courts.

Need more help with opposed eviction?

For tailored advice on how best to handle your opposed eviction process, we are here to assist you in every possible way. We can immediately initiate effective legal procedures to evict your illegal occupier and have your dispute resolved as conveniently as possible.

We are available to take your call 24/7 – +27 (0) 87 550 2740

Contact us

We can advise you on the best approach for you to hold your tenant to account. It is best for the Landlord to take the correct legal procedure as early as possible to avoid delays and complications.Contact Us

Contact us about evicting your illegal occupier or learn more about Eviction Attorney Simon Dippenaar.

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Valid Lease Agreements

Valid lease agreements – What makes them legal?

Renting out your property or renting a property from a landlord should not be a difficult process, but it can become stressful when a tenant or landlord does not keep to their commitments in terms of the lease agreement.

Valid lease agreements South Africa

One of the most important ways to ensure that your lease agreement is valid and that the terms and conditions are clearly agreed upon is to ensure that the correct information is contained therein.

What information should be included in a lease?

We’ve put together a few pointers on making valid lease agreements:

  • The full names, contact details and, if possible, identity numbers, of both the tenant and landlord should be included,
  • The full address and a description of the property to be leased,
  • The amount of rent payable, when it will be due to be paid each month and the percentage or amount by which it may increase during the lease period,
  • The deposit amount payable before the tenant takes occupation of the property,
  • Information related to the care and maintenance of the property,
  • The differing duties and responsibilities of the landlord and tenant,
  • Information on how the utilities bills, such as lights and water, will be paid,
  • Notes on how the lease can be terminated by the landlord or tenant and,
  • The lease period and required notice period for terminating the lease.

Need help creating a valid lease agreement?

For tailored advice on how best to handle your lease agreement, our team are here to assist you in every possible way.

We are available to take your call 24/7 – +27 (0) 87 550 2740

Contact us

We can advise you on the best approach for you to hold your tenant to account. It is best for the Landlord to take the correct legal procedure as early as possible to avoid delays and complications – Contact us.

Learn more about Eviction Lawyer Simon Dippenaar

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