RENTAL INTERDICT SUMMONS AND A LANDLORD’S HYPOTHEC

The relationship between landlord and tenant, when harmonious, is one of the most beneficial ventures that both Landlord and tenant can enter into. At its most fundamental structure, it provides the landlord another stream for generating income, and the tenant gets the benefit of the use and enjoyment of a property they like without having to deal with the financial and administrative processes involved in the acquisition of the property.   Problems, however, tend to arise where the tenant no longer adheres to their obligations in terms of the lease agreement while continuing to benefit from the use and enjoyment of the property. 

This leaves the landlord with the question as to what legal remedy is at their disposal in order to account for the rental arrears imposed by the tenant’s failure to make the necessary rental payments.  One of the remedies at the landlord’s disposal is the landlord’s hypothec. This is a legal right in South African law which provides the landlord with a claim to a tenant’s movable property as security for unpaid rent. This is an automatic right available to a landlord irrespective of whether the lease agreement caters for it due to the right’s existence in South African common law.  This right is ideally used in conjunction with the rent interdict summons, which is explained in more detail below.

RENTAL INTERDICT SUMMONS

The rent interdict summons is aimed at rental debt recovery. In this regard, Section 31 of the Magistrates Court Act (“the Act”) sets out the process for pursuing and perfecting the landlord’s hypothec.  

The rent interdict summons, in addition to catering for the landlord’s claim for unpaid rental amounts, also enables a landlord to include a notice prohibiting or interdicting the unpaying tenant from removing any furniture and/or any effects in the property until such time as the debt is extinguished and/or the landlord consents to the removal of items from the property.

To facilitate this prohibition, the sheriff (during service of the rent interdict summons) is instructed to make an inventory of the moveables at the property. Should judgment be granted against the debtor and they are unable to pay the outstanding rental amount, the sheriff is entitled to execute/remove any items contained in the inventory list.  Items that cannot be attached by the sheriff include:  the necessary beds or clothing of the debtor, necessary furniture and/or tools used for the debtor’s trade.

On obtaining judgment against the judgment debtor, the hypothec is “perfected” (or confirmed by the court), and subsequently, the movables on the property may be removed by the sheriff and sold by way of auction.

CONCLUSION 

The landlords’ hypothec and rent interdict summons ultimately aim at safeguarding the landlord’s interests and aim to still provide a way for the landlord to recoup the outstanding rental amount, irrespective of the tenant’s financial position, which at that stage may be compromised.

Written by Mongisi Khumalo