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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. 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 Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

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