4. ‘Huur gaat voor koop’ – lease before sale Long lease: ten years/longer or lease which is extendable to ten years/longer or lease which will be valid for lifetime of lessee. Short lease: all leases that are not a long lease The huur gaat voor koop protects the following lessees: Short lease, for full term in occupation Long lease, for full term only if the lease is registered AND if not registered, for the first ten years in occupation . If above mentioned requirements are met, the huur gaat voor koop protects the lessee from eviction in case the leased property is sold to a new owner. The new owner is bound by the existing lease agr. If a lessee is not in possession and/or the long term lease is not registered, the lessee is only protected against: a successor titulo lucrative (an heir of the lessor) a successor titulo universali (inherits rights and duties of lessor) purchasers/credit grantors who knew about the lease agr at time of contracting The huur gaat voor koop only protects lessees iro land and buildings, not against expropriation by the State. Does the purchaser replace the seller as lessor?
Yes, as soon as the purchaser acquires transfer over the property, he becomes the new lessor. No new lease contract comes into existence. This substitution of lessors is ex lege, does not require formal cession of rights or delegation of obligations. New lessor entitled to rent and obligated to maintain the property as per the existing contract of lease. He is only bound by the essentialia of the lease, not the incidentialia . (*Set off) 5. Compensation for attachments and improvements If the lessor granted the lessee permission to make attachments and improvements to leased property, the lessor must compensate the lessee for such improvements. Problems arise where permission was not obtained or where permission was obtained but no provision was made for the payment of compensation. Ito common law, the Placaat of 1658/96 , which is applicable in SA law, regulated such issues. However, according to the Business Aviation Corporation case, the Placaat is only applicable to rural land, not urban land. Where the provisions of the Placaat are not applicable, the lessee may use the ordinary rules of unjustified enrichment to claim compensation. Compensation Immovable property: if permission was granted and there was an agr, lessee is entitled to the agreed amount of compensation. If there was no agr wrt compensation, lessee has an enrichment claim. If no permission was given, the lessee has no claim. For necessary expenses incurred, lessee may claim those. For useful expenses, lessee may claim the lesser of increase in market value or actual expenses. For luxurious expenses, lessee has no claim. Movable property: if permission was granted, full expenses may be claimed. If permission was not granted, lessee has enrichment claim for all necessary expenses, lesser of increase in market value or actual expenses, no claim for luxurious expenses. Duties of the Lessee (3)
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- Fall '17
- S van wyk
- Lessee, Leasehold estate, Rental agreement