The short answer
Yes, if they apply for an attachment order
The whole question
I am 20 days late with my rent and I was issued with a letter of demand to pay rent within 48 hours. My landlord has also threatened me with a tacit hypothec and attachment of my motor vehicle. Is this lawful?
The long answer
The landlord’s tacit hypothec is recognised in South African law: the hypothec means the landlord has a right established by law over moveable property belonging to the person who fails to pay rent. “Tacit” means that this right is implied and does not have to form part of a written contract.
How it works is that the landlord can apply to the magistrate’s court under Section 32 for an attachment order for a tenant’s moveable property to secure the debt, and the tenant’s moveable property can be sold to settle the debt that the tenant owes the landlord.
But if the landlord fears that the tenant might hastily abscond with the goods, he can apply for an immediate order which allows the goods to be seized by the sheriff pending settlement of the outstanding rent.
If the tenant objects to the seizing of their property, the property can’t be sold without a court’s permission. But if the court finds that a tenant hasn’t got a valid reason for objecting, the tenant might end up paying the landlord’s court costs as well.
So yes, your car would be part of your moveable property which the landlord could lawfully attach.
But because this is an extraordinary time where many people are unable to pay their rent, landlords are being urged to try to find common ground with their tenants on how the debt can be paid with the least damage being inflicted on either side.
In an article in April 2020, Dave McGlashan of the SA Property investor’s Network suggested that among the compromises that could be made by landlords and tenants were Deferred Rental Agreements (meaning delaying the payment of rent to an agreed future time) and Utilisation of Deposit Agreements (where deposit can be used to pay rent immediately with agreement that the deposit be reinstated in instalments when the state of disaster is lifted.)
He recommended the TPN Credit Bureau’s free Rental Recovery Pack, which contains an Income Declaration for tenants, besides the deferred rental agreement and the deposit utilisation agreements mentioned above. The Income Declaration document allows tenants to officially declare that their income has been affected by the Covid-19 lockdown whether this is by retrenchment, short time, temporary unpaid leave or shortened working hours. The landlord can then verify this with the tenant’s employer and ask for supporting documentation.
The main idea is that the landlord has some security of knowing that the rent will be paid in time, and the tenant is granted some immediate relief.
In ordinary times, a tenant could also approach the Rental Housing Tribunal to ask that the rent be lowered, but the Tribunal is not hearing cases under lockdown.
As you probably know, no one could be evicted during the lockdown 5 for any reason according to the regulations published in the Government Gazette on 26 March. According to the regulations for Level 4, a landlord may apply for an eviction order from the court in terms of the PIE Act (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998), but the actual eviction can only be carried out after Level 4 is lifted. Level 4 will be lifted and succeeded by Level 3 from 1 June.
Answered on June 1, 2020, 8:50 a.m.