Contract of Lease Lecture 1
1: Introduction In SA law: • Locatio conductio rei (thing) • Locatio conductio operarum (employment) • Locatio conductio operis (service)
2: Sources of Law Sources of law: • Common R-D law of lease • Legislation that impacts on the common law of lease: – Rental Housing Act 50 of 1999 (RHA) – Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) – Extension of Security of Tenure Act 62 of 1997 (ESTA) – Consumer Protection Act 68 of 2008 (CPA) • PIE and ESTA relate to residential leases and the CAPACITIES of landlords and tenants as owners and occupiers. • CPA, both residential and commercial – w.r.t. contracts between suppliers (landlords) and consumers (tenants) – both commercial AND residential. • With respect to the RHA, the concept of ‘unfair practice’ is NB.
3: Definitions • Essentialia of lease: – Undertaking by lessor to give the lessee the use and enjoyment of the property – Temporary – Payment of a sum of money in return (rent) NB to determine what kind of contract you are dealing with, as this determines the naturalia of the contract – e.g. that the ‘huur gaat voor koop’ rule may apply, or the lessors tacit hypothec etc.
3.1 Use and enjoyment • Any THING movable or immovable (house / DVD / car). • Incorporeals also (right to trade, but see Young v Smith ). • Partial letting too (e.g. a wall for advertising). • Property must be identified and identifiable. • Only use and enjoyment, NOT diminish and consume ( ius utendi, ius fruendi but not uis abutendi ) • Thing must be returned in substantially the same condition, else not lease. • Mining lease therefore not actually lease.
3:2 Duration of the lease • Common law – ‘Temporary’ – If in perpetuity, then not lease, possibly emphyteusis (‘bywoners kontrak’) – Statement in Kerr -case was obiter – BUT lease need not be entered into for definite time – could be at will of either party or indefinite time, with rent payable periodically. • The CPA provides for maximum fixed-term lease of 24 months – but only where the lessee is a natural person. – (For CPA to apply, the lessor would normally have to be in the business of letting residential property – but that is commonplace these days).
3.3: Rent • Must sound in money ($) • If not $, then another type of contract, with different naturalia.
- Fall '18
- Contract Law, landlord, RHA