I previously wrote an article https://wp.me/p9lCpf-G pertaining to what a Landlord should not do when a Tenant is in arrears with rental.
This article in turn addresses what a Landlord can legally do when a Tenant is in arrears with rental.
In law, the Landlord has a special protection assisting in the collection of arrear rental from tenants, which is called the “LANDLORD’S HYPOTHEC/LIEN”.
This hypothec allows the Landlord to sell the movable goods of the tenant which are on the rental property, if the tenant fails to pay the rent.
The hypothec exists from the date of the tenant’s occupation of the leased premises, but becomes legally enforceable only once a Court Order is obtained. In the absence of a Court Order, the Landlord cannot enforce the hypothec/lien. Thus, prior to a Court Order being obtained, a tenant is free to remove his movable goods from the rental property.
The Landlord may bring the hypothec/lien into effect by interdicting the tenant from removing goods from the premises. Thus included in an arrear rental Summons is an Automatic Rent Interdict. Service of this Summons on the tenant brings the hypothec/lien into effect.
The Magistrate Courts’ Act empowers the Landlord to attach and simultaneously remove the tenant’s movables from the leased premises in security of rent.
In effect, the Messenger of Court serves the Summons and attaches and at the same time removes the tenant’s movable goods to the value of the arrear rental plus costs. The Messenger pending finalisation of the case then stores the movables. This procedure secures the rental and costs and also acts as an incentive for the tenant to make payment of the arrear rental immediately, as the tenant would want his property back.
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