Having experienced problems with a tenant, with rent outstanding and damage done to the flatlet, a reader wants to know if he can sell the lodger’s goods to recover some of the costs.
He says he is also considering taking legal steps for the recovery of the outstanding rent.
See the reader’s question here.
Besides being in arrears for a number of months with the rent, the tenant has disturbed the neighbours and refused the reader access to inspect the premises.
However, having gained access for an inspection, the reader says much of the premises have been destroyed.
The reader holds a small deposit but this will not be nearly enough to cover the costs of repairing the damage which has been caused.
There is no information whether there is an agreement for the tenant to now vacate the premises, but it appears that this is the case.
The reader is afraid that the tenant will disappear and that he will have lost his chance to recover any of his losses.
The reader is not permitted to merely take his tenant’s goods and sell them to recover his damages.
However, he has what is known as a tacit hypothec over the movable goods of the tenant where such goods are on the rented premises.
Such a right over movables may, in certain circumstances, even extend to the goods belonging to third parties situated on the premises.
The tacit hypothec is required to be “perfected”, meaning that the reader will have to institute legal proceedings to obtain an order for attachment of the goods while they remain in the premises.
Should the tenant remove the goods from the premises, the reader’s right over such goods will, as a general rule, be lost.
If the tenant does attempt to remove his goods from the premises in a clandestine manner, the reader could retain his hypothec over those goods should he be able to recover them before they reach their new destination.
Of course, this implies that the reader would have to be in constant surveillance of the premises.
Alternatively, he would need reliable intelligence as to when his tenant might be intending to leave and, accordingly, be able to react swiftly to protect his rights.
In taking steps to secure the attachment of the tenant’s movable goods, the reader could simultaneously apply for judgement for the arrear rentals, together with other amounts due to him.
The attached goods could then form security for such damages suffered and could, failing satisfactory settlement by the tenant, be sold in execution.
Whether or not the hypothec extends to movables for security for damages other than arrear rental is the basis of some debate.
In the 2016 judgment of Solgas (Pty) Ltd v Tang Delta Properties CC, the Gauteng Court ruled that, notwithstanding the fact that the use of the hypothec for anything other than the security of arrear rentals had fallen into disuse, the hypothec did extend to the making good of any damage to the premises.
In light of the above, it would appear that the reader has an adequate remedy available to him.
However, he would have to take timeous steps to secure his rights over the movable property of the tenant with a view to recovering those arrear rentals as well as any further amount required to restore the premises.
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