This entry was posted in Evictions, Rent, Uncategorized and tagged Location Arrear , Arrear Rental Collections, Eviction, Eviction Lawyers, Landlord Rights, Lease, Conflicted Evictions, Immediated Mortgage. Once possible, the landlord`s mortgage also gives preference over other creditors in the event of the tenant`s insolvency (section 85 § 2 of the Bankruptcy Act 24 of 1936). The reality is that the tacit mortgage is more useful as an incentive to encourage the tenant to pay the unpaid rent than as a meaningful means of compensation. It is unlikely that you will be able to take possession of goods worth the amount you are owed, let alone the hassle of having to sell them. But when faced with an unruly or irresponsible tenant, the mortgage can give the landlord some influence in the fight to recover the unpaid rent. However, we always recommend keeping the lines of communication open. Negotiating with your tenant if they seem to have financial problems before the eviction or invoking the mortgage are the only options. In order to get a court order, a landlord must serve a subpoena on the tenant about the rent ban. A landlord may also choose to seize the tenant`s personal property. If a third party`s property is located on the property and they have not taken reasonable steps to protect their property from the owner`s mortgage, the courts will assume that the property was brought to the leased premises with the tacit knowledge and consent of the third party, subjecting them to the mortgage. However, a recent case suggests that arbitrary deprivation of a third party`s property is unconstitutional. A landlord`s implied hypothec gives him a limited real right in the movable property located in the leased premises when the rent is due but has not been paid.
It is called a “tacit” mortgage because it is not created by agreement between owner and tenant, but by law. If a tenant defaults on rent, the common law grants the landlord an “implied hypothec” on the tenant`s property on the property. What does this mean in plain language? “Mortgage” is an ancient term that dates back to the 16th century and has its origins in French, which has survived in legal jargon and means “a legally established right over the property of a debtor that remains in the possession of the debtor”. Implicit means “implicit” or “understood without being told.” The relationship between a landlord and their tenant is often not harmonious, especially if the tenant does not pay the rent. In this case, a landlord`s implied hypothec arises and remains in force as long as unpaid rent is due and payable. However, the landlord is not automatically entitled to this right. In most cases where the landlord can use their mortgage, they should issue and serve a notice of rent freeze on the tenant, which states that the tenant is prohibited from removing or removing furniture or items from or on leased premises that are subject to the landlord`s rental hypothec or suffering until the court has made an order to that effect. This procedure can be applied in 2 ways: The landlord applies to the district court for attachment under § 32 in securitatem debiti – in other words, to guarantee the debt. However, if there is a reasonable suspicion that the tenant might be fleeing with the property, the landlord may require an immediate order. This allows property to be removed as security for unpaid rent without notice, as such notice could cause the tenant to remove things in advance, rendering the owner`s tacit mortgage worthless.
Also note that only movable property subject to a special notarial deposit (where the movable property is indicated) and not a general notarial bond (which is usually registered on the debtor`s movable property and where the property is not expressly listed) excludes the owner`s hypothec. Do you have questions about the owner`s tacit mortgage? Once the mortgage is executed, it gives preference to the landlord over other creditors if the tenant declares bankruptcy. This essentially means that a landlord can only exercise a mortgage for an amount that is not more than an annual rent, and that seized property should not exceed that amount. A “landlord`s mortgage” is a common legal remedy that allows landlords to collect rent arrears from tenants. This provision allows a landlord to sell the tenant`s movable property located in the leased premises if the tenant does not pay the rent. A landlord may choose to take out the mortgage because it may be more effective than a rent-free assignment. Naturally, tenants will not want their property confiscated and may react more quickly to this threat than to a ban on arrears payments. All goods purchased under a hire purchase agreement are excluded from pledging by the lessor. Movable property for which a special notarial guarantee has been registered is also excluded from the hypothec, unless the hypothec was executed before the notarial guarantee was registered.
The provision relating to implied mortgages is enshrined in section 32 of the Courts of First Instance Act, as most applications for tenancy are heard by the Magistrate`s Court rather than the High Court. Section 32 allows a landlord to apply for seizure and, in certain circumstances, removal of a tenant`s personal property from the leased premises in lieu of the rent owing. A landlord can invoke section 32 because it may be more effective than a subpoena in a rent prohibition order. Naturally, tenants will not want their property confiscated and may react more quickly to this threat than to a ban on paying arrears. More importantly, it should be noted that section 5 of the Tacit Mortgages Act, Chap. 12:01 provides that an implied pledge of owners or letters of lease of permanent property may not be claimed for an amount exceeding one full year`s rent or rent of the premises for which such pledge is claimed. However, recent case law suggests that such confiscation of third-party property is in fact arbitrary and unconstitutional, and it is now appropriate that the owner`s implied mortgage law be legally reviewed to reflect current constitutional values in South Africa. For the purposes of our common law, a landlord under his “landlord`s mortgage” has special protection in the collection of tenant arrears from tenants. A mortgage allows a landlord to sell a tenant`s personal property (and, in some cases, a third party`s personal property) located on the leased premises if the tenant does not pay the rent.
“For his mortgage to be legally effective, a landlord must, through legal proceedings, complete his mortgage through invecta et illata (things transported and brought) while they are still in the leased premises. » When property is seized due to the owner`s seizure, the ownership of the property is generally ignored and the property of third parties located on the premises is generally subject to the same treatment (especially if the property was brought to the premises leased by the tenant with the express or tacit knowledge of the third party, was intended for permanent use by the tenant and if the landlord does not know: that the property belongs to a third party). In Bloemfontein Municipality v. Jacksons Ltd, the Appeal Division found that if a third party failed to take reasonable steps to protect its property from the owner`s mortgage, the courts will find that the property was moved to the leased premises with the third party`s tacit knowledge and consent. The mortgage secures the tenant`s obligation to pay the rent within the meaning of the lease.
