Our reader tells us that he is currently renting a dwelling and has 18 months remaining on his lease.
The landlord recently began marketing the property and has advised our reader that he has had considerable interest and now has a potential purchaser.
The stumbling block, however, is the lease in favour of our reader. All the people who have expressed interest want to take occupation rather than taking over the tenants.
The reader considered moving to accommodate the landlord, but was unable to secure a suitable dwelling in the area at an affordable rental.
The landlord has requested frequent updates as to the steps that he is taking in trying to find new accommodation and appears to be growing increasingly impatient. He is now accusing the reader of deliberately trying to derail the sale.
The landlord subsequently told him, in no uncertain terms, that if the sale is concluded, he is to vacate the dwelling immediately.
See the reader’s question here.
Schalk van der Merwe from Rawson Properties in Somerset West says the reader knows of the maxim huur gaat voor koop, an often quoted principle in respect of leases, essentially translated as “hire takes precedence over sale”.
“He feels that this should protect him from being bullied to leave the leased property.”
Van der Merwe explains the rule applies to leases of land and houses and, in general, where the property has been transferred from one party to another it confers upon the lessee the right to continue to occupy the property.
“It also precludes the new owner from ejecting him for the remainder of the lease, provided that the lessee continues to pay the rent due.”
He explains in this way the lessee, in occupying the leased property, has been vested with a real right.
Van der Merwe says the rule huur gaat voor koop has been adopted by our courts and is part of South African law.
Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West says the rule is limited to leases of land and buildings.
He says some of the more technical and practical aspects of it are set out in the Supreme Court of Appeal decision of Genna-Wae Properties (Pty) Ltd v Medio Tronics (Natal) (Pty) Ltd.
In this case, says Hill, the judge determined that the sale of property consisting of land or buildings does not bring the lease to an end.
“Rather, the purchaser takes the place of the original lessor and acquires by operation of law all the rights of the original lessor under the lease.
“At the same time the new owner is obliged to recognise the lessee and to permit him to continue to occupy the premises, provided that he continues to pay the rent and observe his obligations.”
Hill says the lessee, in turn, is also bound by the lease and, provided that the new owner recognises his rights, does not have any right to abandon the contract.
“This is the impact of huur gaat voor koop in our modern law.”
He points out that there is opinion that the maxim is not applicable where the tenant is not up to date with payments.
“However, the principle, unless otherwise agreed between the parties, is not applied in this manner.”
Hills says the reader clearly has a right to remain in the dwelling for the balance of the term of the lease despite the property being sold, if this is the case.
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