ESSENTIALIA OF CONTRACT OF LEASE
The property to be leased
• Temporary use and enjoyment of the property
• Lessee pays lessor determinable amount of rent.
NB: Parties can agree to contract ≠ lease. Court = true
intention of parties.
Rent
- Agree (tacitly or expressly) on amount of rent;
- Agree on formula for compensation;
- Nominate third party to determine rent.
FORMALITIES
Common law – no formalities
- CPA
■ Minister requires certain contracts to be in writing
■ Written agreement valid even if lessee did not sign it
■ Free copy + plain & understandable language
• Rental Housing Act
– Tenant can insist on written contract
– Min info – if not – landlord commits an offence
– Amendment Act – Contract must be in writing even if not requested by the
tenant
– Minister – pro forma lease agreement in 11 languages
• Long term lease agreement – registered in deeds office
DUTIES OF THE PARTIES
Determined by:
■ Contract
■ Common Law
■ CPA
■ Rental Housing Act (may be waived)
Section 14 of CPA
■ Expiry and renewal of fixed-term agreements
■ Lease not more than 24 months
■ Cancel lease + 20 business day
The Rental Housing Act
- Tenant has right to privacy. If inspection, reasonable notice must be given.
- Landlord = provide dwelling habitable condition + maintain existing
structures.
- Landlord = unpaid rental + amount payable ito Rental Housing
Tribunal/court of law.
- Landlord must provide receipt for rental paid.
- No unfair discrimination advertise, negotiating with prospective tenant or
during term of lease
, DUTIES OF THE PARTIES
Duties of Lessor
- Deliver the property;
- Maintain property;
- Provide undisturbed use and enjoyment;
■ If use and enjoyment is disturbed
■ Interdict – to refrain interfering
■ Spoliation order – to return possession
■ Warranty against interference by third party
- Pay taxes
DUTIES OF THE PARTIES
Par 11.31 – 11.36
Remedies of lessee
■ Specific performance
■ Cancellation
■ Damages
■ Reduction in rent
■ Repair – reduction in rent.
HUUR GAAT VOOR KOOP
Generally, lessee has personal right over property.
- If property sold, lessee can enforce right against lessor & not against new
owner.
- Exception: Huur Gaat Voor Koop
Principles
- Lessee already occupies property = lease must be honoured.
- Long term lease registered = must be honoured.
- If both are applicable, rights in property are subject to lease.
- If lessee does not occupy property, lease = enforceable against persons who
obtain property without compensation
Principles
- Not applicable if property expropriated by State.
- Applicable to lease of land and buildings.
- Short term lease = less than ten years
- Long term lease = more than ten year.
- Protection → all parties, successors, purchasers & credit
grantors with knowledge of title.
DUTY OF THE LESSEE
Pay rent
- If rent not paid = lessee is in breach.
- Lessor entitled to tacit hypothec over moveable property.
- Immovable belonging to 3rd party found on property = hypothec.
- Protection and proper use of the property
- Lessee must use property for intended purpose.
The property to be leased
• Temporary use and enjoyment of the property
• Lessee pays lessor determinable amount of rent.
NB: Parties can agree to contract ≠ lease. Court = true
intention of parties.
Rent
- Agree (tacitly or expressly) on amount of rent;
- Agree on formula for compensation;
- Nominate third party to determine rent.
FORMALITIES
Common law – no formalities
- CPA
■ Minister requires certain contracts to be in writing
■ Written agreement valid even if lessee did not sign it
■ Free copy + plain & understandable language
• Rental Housing Act
– Tenant can insist on written contract
– Min info – if not – landlord commits an offence
– Amendment Act – Contract must be in writing even if not requested by the
tenant
– Minister – pro forma lease agreement in 11 languages
• Long term lease agreement – registered in deeds office
DUTIES OF THE PARTIES
Determined by:
■ Contract
■ Common Law
■ CPA
■ Rental Housing Act (may be waived)
Section 14 of CPA
■ Expiry and renewal of fixed-term agreements
■ Lease not more than 24 months
■ Cancel lease + 20 business day
The Rental Housing Act
- Tenant has right to privacy. If inspection, reasonable notice must be given.
- Landlord = provide dwelling habitable condition + maintain existing
structures.
- Landlord = unpaid rental + amount payable ito Rental Housing
Tribunal/court of law.
- Landlord must provide receipt for rental paid.
- No unfair discrimination advertise, negotiating with prospective tenant or
during term of lease
, DUTIES OF THE PARTIES
Duties of Lessor
- Deliver the property;
- Maintain property;
- Provide undisturbed use and enjoyment;
■ If use and enjoyment is disturbed
■ Interdict – to refrain interfering
■ Spoliation order – to return possession
■ Warranty against interference by third party
- Pay taxes
DUTIES OF THE PARTIES
Par 11.31 – 11.36
Remedies of lessee
■ Specific performance
■ Cancellation
■ Damages
■ Reduction in rent
■ Repair – reduction in rent.
HUUR GAAT VOOR KOOP
Generally, lessee has personal right over property.
- If property sold, lessee can enforce right against lessor & not against new
owner.
- Exception: Huur Gaat Voor Koop
Principles
- Lessee already occupies property = lease must be honoured.
- Long term lease registered = must be honoured.
- If both are applicable, rights in property are subject to lease.
- If lessee does not occupy property, lease = enforceable against persons who
obtain property without compensation
Principles
- Not applicable if property expropriated by State.
- Applicable to lease of land and buildings.
- Short term lease = less than ten years
- Long term lease = more than ten year.
- Protection → all parties, successors, purchasers & credit
grantors with knowledge of title.
DUTY OF THE LESSEE
Pay rent
- If rent not paid = lessee is in breach.
- Lessor entitled to tacit hypothec over moveable property.
- Immovable belonging to 3rd party found on property = hypothec.
- Protection and proper use of the property
- Lessee must use property for intended purpose.
