LCSP4814- lease law unit 1-4.docx - LCSP4814 SUMMARIES LAW...

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1. DEFINITION OF LAW OF LEASE: Contracts of Lease are (1) reciprocal agreements between lessors and lessees in terms of which the lessor bind themselves to give the lessee the (2) temporary (3) use and enjoyment of the property , (4) wholly or in part , and the lessee binds themselves to (5) pay rental in compensation of their use and enjoyment. (- Bradfield & Lehmann) 2. SOURCES: 2.1 Common law Common law is the primary source of the law of lease as received from Roman Dutch Law and as developed through our case-law, the common law has therefore also over time begun to vary in terms of the law relating to commercial leases and residential leases respectively. There are areas of the common law that are regulated by statute, in which event the law specifically governing that area will apply. For example common law as modified by the provisions of the Rental Housing Act.
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2.2 Statutes: Rental Housing Act No 50 of 1999 (RHA) and Rental Housing Amendment Act No 35 of 2014 (RHAA) (still to commence) - Applies specifically to residential leases and the minimum rights and obligations of lessees and lessors Prevention of Illegal Evictions from Unlawful Occupation of Land Act No 19 of 1998 (PIE) - Applies to specifically to residential leases and the eviction of occupiers by owners Extension of Security of Tenure Act No 62 of 1997 (ESTA) - Applies to specifically to residential leases and the eviction of occupiers by owners Consumer Protection Act No 68 of 2008 (CPA) - Applies to leases both residential and commercial entered into between consumers and suppliers 3. ESSENTIALIA OF LEASE: 1. USE AND ENJOYMENT OF THE PROPERTY: Full or partial use and enjoyment; Property must be identifiable; Lessee cannot give or acquire rights in the premises, greater than use and enjoyment; Temporary nature – the property must be returned in the same condition it was received, fair
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Wear and tear expected. There is a difference in powers between the lessor, to that of a lessee in so far as it relates to the immovable property. Lus utendi; Ius fruendi; ius abutendi Practical note: Underlying principle is that the property MUST be returned in the same condition it was given, fair wear and tear excepted. 2. TEMPORARY DURATION: Common law: A definite lease period is not a contractual requirement. Distinctions between fixed term, periodic leases, renewable lease Lease contract clauses – Suspensive conditions upon the happening of future events; or Conditional clauses, used to extend or limit lease periods. CPA: Lessees are considered to be “consumers”. To protect consumers from unnecessarily long instalment agreements (leases may escalate annually). 2 years is the maximum duration of a fixed term lease under the CPA for natural persons, unless
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(i) the lessee agrees expressly to a longer period and the (ii) longer period will be to the financial benefit of the lessee.
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