Every Landlord has a hypothec which is enforced so long as the movable goods remain upon the leased premises and can be secured by an interdict or attachment in circumstances where rent is owing. Important to note is that the movable property on the premises is subject to the Landlords hypothec and may be that of the tenant, a subtenant or a third party.
The tenant’s movables which have been brought onto the premises with the intention that they remain there indefinitely or for the period of the lease agreement, are subject to the landlord’s hypothec. These goods are so subject even though the landlord has no knowledge that they are on the premises.
What to do?
Section 32 of the Magistrate’s Court Act 32 of 1944 gives a landlord an opportunity to approach the Court for an Order in terms whereof the goods subject to the hypothec may be attached. This relates to a situation in which rental is in arrears and such an attachment may be sought under either of two grounds:
- Overdue rent has been demanded in writing and has remained unpaid for 7 (seven) days; or
- That, if no such demand has been made, the landlord believes that the tenant is about to remove the movable property in order to avoid making payment of the overdue rent.
The process follows the form of an Application supported by a short Affidavit and can be brought ex parte and as a matter of urgency.
Should the Court order an attachment, such an attachment order is issued on the ground that the overdue rent has been demanded and has remained unpaid and is purely an attachment to confirm the landlord’s legal hypothec and to render the removal of the goods which is subject to the hypothec unlawful. The purpose of this attachment is an apprehension that the tenant can remove the movables in order to avoid having to pay the overdue rent.
The attachment is a security for the payment of the rent and the Sheriff will be instructed to attach the movables immediately and can be instructed to remove such items from the property and to be sold in execution subject to the landlord following the legal steps for such an sale in execution to be evoked.