Lecture 1 - Contract of Lease(1).pptx - Contract of Lease Lecture 1 1 Introduction In SA law Locatio conductio rei(thing Locatio conductio

Lecture 1 - Contract of Lease(1).pptx - Contract of Lease...

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Contract of Lease Lecture 1
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1: Introduction In SA law: Locatio conductio rei (thing) Locatio conductio operarum (employment) Locatio conductio operis (service)
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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.
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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.
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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.
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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).
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3.3: Rent Must sound in money ($) If not $, then another type of contract, with different naturalia.
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