Sundaymail Editor
Legal Matters with Arthur Marara
A LANDLORD has a right in common law to possess a tenant’s movable property where a tenant fails to pay rent. This is possible under a landlord’s lien or lessor’s tacit hypothec, as it is otherwise known.
The law allows a landlord to withhold personal property of a tenant brought to the leased premises, for failure to pay rent to safeguard payment of his or her rent.
The nature of the hypothec is such that it can be described as a quasi-real right over the lessee’s property as security for rent arrears.
Even before a landlord applies for the s 34 (1) order, he or she already enjoys certain rights over the tenant’s property.
This means it should be less onerous for him or her to prove the right to attach the tenant’s property as security for the outstanding rent due by the tenant. The s 34(1) order is mere confirmation of the landlord’s hypothec.
The lien accrues as soon as the rentals become due. The landlord may hold onto the property until the rent arrears are paid. The landlord is entitled to take the property and sell it to recover his or her rental income.
Where he decides to dispose of the property to recover the debt, he is required to follow proper legal channels. Generally, the hypothec covers goods brought to the leased premises by the tenant.
The property must be at the premises of the tenant. Property outside the premises may not be taken.
A sub-lessees’ property is subject to the landlord’s hypothec where he fails to pay rent. The landlord’s hypothec extends to property belonging to a third party brought to the leased premises by the tenant on the basis of implied consent or estoppel.
AJ Van Der Walt, in an article titled “Extending the lessor’s tacit hypothec to third parties’ property”, states that the reasoning for this approach is that such a third party and owner having been aware of the whereabouts of his property, fails to protect it from the landlord’s lien by informing the landlord of his rights in the property and hence is subjected to the lien.
Property that is brought for use by the tenant and with the knowledge and consent of the owner and where the goods have been at the premises for an indefinite period and are intended for permanent use by the tenant are attachable.
Where the goods are taken to the premises for use by the tenant and the landlord is unaware that the property belongs to a third party, the goods are covered by a lien.
The law governing the applicability of a lien, more so the requirements of a lien, is clear that they relate to a claim for a lien by a landlord.
A tenant who sub-leases the premises may not rely on the landlord’s lien, he is not the landlord.
It is only the landlord who may rely on a landlord’s tacit hypothec. (see: Chigaazira v Museve & Ors (HH 229 of 2017, HC 9995 of 2016))
The magistrate’s court is empowered in terms of s 34(1) of the Act to issue the order of attachment of property in security of rent upon application by a landlord alleging that the tenant is in arrears with his or her rent; that the rent arrear has been demanded for the last seven days or more, or that in the landlord’s belief, the tenant is about to remove his or her property from the rented premises in order to defeat or avoid paying the rent due.
The landlord gives security for any damages, costs or charges the tenant may incur by reason of such attachment, in the event that it is set aside.
In terms of s 34(2) of the Magistrate’s Court Act, (Chapter 7:10), any person affected by an order of the magistrate’s court authorising the messenger of court to seize and attach so much of the movable property of, or under the control of, a tenant and found on the rented premises and as may be sufficient to satisfy the amount of rent due and in arrears by the tenant, together with the costs of such application, and those of any action for the recovery of the outstanding rent, can apply to set aside such an order.
The attachment order the court issues under s 34(1) of the Act does not automatically lead to execution.
It is to restore or preserve so much of the tenant’s property at the rented premises as the value of which would be sufficient to satisfy any judgement of the court for the outstanding rent and costs.
Such an order seems similar to an anti-dissipation interdict, which is a temporary interdict intended to preserve an asset by prohibiting its disposal pending the determination of a dispute.
The object is to give effect to the order of a court that may be eventually granted to ensure there is an asset to levy attachment in the event of execution: see Shabtai v Bar & Ors HH 707-14.
The attachment under s 34(1) of the Act is to confirm and secure the landlord’s hypothec for rent that is referred to in s 38 of the Act. Under the common law, a landlord has a tacit hypothec for the rent owing by the tenant.
The hypothec is over all the movable property on the rented premises and which belongs to the tenant.
Under s 38 of the Act, the hypothec is over the furniture and other effects of the tenant at the rented premises.
In simple terms, a landlord’s hypothec for rent is an encumbrance on the tenant’s property as security for rent.
The property remains in the possession and use of the tenant, but he or she may not remove it from the rented premises. (See: Life Brand Agric Services (Pvt) Ltd v Liaquart Petker HH 268-21)
LEGAL DISCLAIMER: The material contained in this article is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practising law in Harare. He is also a notary public and conveyancer. He is also passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
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Tinaye Agere