n Tydskrif vir die Suid-Afrikaanse Reg - Huurders, eiegeregtigde huurverlenging verpak as retensieregte en plakkate - oeroud en tog modern

Volume 2006, Issue 1
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



In this contribution, the scope of the statutory prohibition against claims by the tenant for improvements made during his tenancy to the rented property is reconsidered in the light of the historical intent of the legislatures who enacted the old . It is emphasised that the should not be read in isolation, but due cognisance should also be taken of the fact that they merely re-enacted and endorsed the stipulations founded in the of 1580 - a fact that seems to have been ignored by writers and the courts alike. The is formulated in more general terms and does not restrict the statutory interventions to rural tenancies as may be presumed from a mere reading of the .
The ratio behind the prohibition of holding over by the erstwhile tenant under the guise of a presumed lien and the possible applicability of it to modern tenants is considered in the light of the position in the modern English and Dutch law. In the latest formulation of the applicable sections of the last mentioned code, a possible claim for compensation for the tenant is acknowledged since 2003, but such a claim is not enhanced by a lien for the erstwhile tenant as creditor with the result that he must vacate the premises at the expiration of his tenancy and may only afterwards succeed with a claim for damages founded on enrichment if all the requirements can be met. Thus this modern code also excludes the possibility that the erstwhile tenant can prolong his occupation of the leased premises beyond the termination of his tenancy by relying on a lien in support of his presumed claim against the landlord founded on the perceived unjustified enrichment of the latter due to the norms of .
In the light of the fact that a tenant who deliberately failed to apply his timeously before the tenancy lapsed, has in reality orchestrated his own loss, it is doubted whether a landlord should be held liable for any "improvements" forced upon him against his will. At the very least the landlord may reject the so-called improvements and rely on the underlying duty of the tenant to deliver the leased premises in the original state less fair wear and tear. The conclusion is reached that although the rules formulated in the old date from statutory interventions introduced more than 500 years ago, the underlying rationale is still sound and applicable in modern times. The mere fact that these rules have withstood the societal changes over time is indicative of the underlying soundness encompassed within these rules. If a modern legislature should venture upon a modernisation of these rules governing the relationship between landlord and tenant, it will be well advised to stick as closely as possible to the original because it does reflect the underlying perceptions of fairness and equity in society and holds the conflicting interests of landlords and tenants in equilibrium.

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