One of the most common problems regarding rentals, is a tenant who doesn’t pay their rent in due time… But here’s the good news for the many landlords who are left frustrated on a monthly basis: the South African law provides you with remedies, thanks to the application and effect of Sections 31 and 32 of the Magistrate Court Act (MCA) 32 of 1944.
SECTION 31 OF THE MCA
When a landlord wants to issue a summons for a rent claim, he or she may add an Automatic Rent Interdict in terms of Section 31 of the MCA. This means that a notice will accompany the summons which prohibits any person from removing furniture or other belongings that are subject to the landlord’s hypothec for rent.
THE LANDLORD’S HYPOTHEC
A landlord’s hypothec is a common law “remedy” which provides him or her with leverage against the tenant who is unwilling (or unable) to pay the rent in arrears. In other words, it allows the landlord to attach the tenant’s movable property as a means to ensure payment for the outstanding rent.
REQUESTING A SHERIFF
To ensure that nobody removes any movable property from the premises, the landlord may – at his or her own expense – request a sheriff to set up an inventory. This will enable him or her to keep track of all the items on the premises either until these have been removed for a sale of execution, or until the tenant has settled the rent in arrears.
SECTION 106 OF THE MCA
This section applies in case a tenant disobeys, refuses or fails to comply with the notice and goes on to remove movable property from the premises – he or she will face conviction and be held liable to a fine or imprisonment.
In theory, the abovementioned section provides for a so-called “remedy”. But, in practice, it doesn’t always suffice. There is, however, a procedure available to a landlord who is more interested in securing the tenant’s property, rather than imprisoning him – Section 32 of the MCA provides for this route.
SECTION 32 OF THE MCA
This Section enables the landlord to present to the court his or her application for an order that allows the attachment of movable property on the premises. The movable property which may be attached are:
- subject to the landlord’s hypothec for rent, and
- sufficient in value to settle the outstanding amount.
The application for attachment needs to be supported by an affidavit in which the landlord alleges, amongst other things, that:
- he or she initially demanded the rent in arrears in writing and seven days have since passed; and/or
- he or she is concerned that the tenant may remove movable property from the premises in order to avoid paying rent.
With regards to the abovementioned, the landlord has to provide security to the clerk of the court that he or she will take responsibility for the damages, costs and charges involved which any person (especially the tenant) may sustain or incur as a result of the attachment on the property.
COURT GRANTS APPLICATION
If the court grants the application for the landlord (with the approval of the clerk of the court), he or she may instruct the sheriff to attach the movable property. Unlike practice in the High Courts, the sheriff will only attach the movable property without removing it from the premises and go on to set up an inventory of which the tenant will be informed.
FURTHER INSTRUCTION to the sheriff should be given if the landlord wants the movable property to be removed and stored elsewhere. The costs involved in this process form part of the recovered amounts realised at sales in execution.
Sure, the above-mentioned procedure may seem effective in theory, but in reality, however, caution should be taken – especially considering the fact that amounts realised at sales of auction is often low. It would be wise to keep costs low if it seems as though the tenant’s movable property is of high value.
NOTICE TO TENANT
Finally, the tenant should be informed that he or she has ten days from the day on which the summons is served.
The Fuchs Roux team trusts that your landlord-tenant situation is now clarified to put you at ease. We thrive on excellent service produced by years of practice and a keen thirst to stay updated on the most recent adjustments and amendments regarding our fields of expertise. Feel free to CONTACT US with any queries you may have regarding conveyancing.
And remember: Never expect the usual!