Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We
are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.
As soon as you become a tenant by moving into rented property,
you enter into an oral or a written lease agreement with the
owner of the property. In terms of the lease (which is, in fact,
a contracts governing letting
and hiring) the property owner (the lessor) makes a binding agreement
to give you (the lessee) the
temporary use and enjoyment of the property in return for the
payment of rent, which in the majority of instances is monetary.
The only exception to this form of payment may occur when
agricultural property is leased and the parties agree that the
rent may be a specified quantity or a fixed proportion of produce
- such as wheat or dairy products - from that property.
Rent, generally, should be a monetary amount and it should be
for a fixed or determinable sum.
The parties can agree on a figure arrived at by a method or
formula, or even on an amount calculated by a third person. If
the formula proves unworkable or the designated person fails to
fix the rent, the lease fails.
Before you move into your rented premises, you will probably
have to pay the costs of drawing up the lease, as well as the
stamp duty on it, one month's rent in advance, a deposit - in
most cases equal to one month's rent - as security against any
damage you might cause and a deposit towards the connection of
water, electricity or gas.
What must be in a lease
A lease contains three essential items:
- An agreement to let you (the tenant) have the temporary
use and enjoyment of the property;
- An undertaking by the property owner to give you
- A commitment from you to pay the rent. In a written lease
it is important that the property is specified by its
full street address, suburb and town (or farm name,
number and magisterial district). An erf number (where it
is known) may also be recorded, but make sure that it
corresponds with the street address.
An agreement can be a contract of lease only if:
- A definite period is stipulated;
- The lease is to continue until the occurrence of a
certain event, of which the precise date may be unknown
(such as the death of the tenant or property owner);
- The lease can be terminated by either the property owner
or the tenant;
- The lease is for an indefinite period, with rent payable
periodically - in which case it becomes a 'periodic'
Short and long leases
There are two basic types of lease agreement - a short lease,
for less than 10 years; and a long lease for 10 years or more.
If the initial duration is for less than 10 years, but the
lease is renewable for a period or periods totalling 10 years or
more, such a lease is called a long lease.
A lease for the lifetime of the tenant (or any other
designated person) is also a long lease. However, the majority of
leases - particularly for urban homes and flats - are short
If you are presented with a written lease, read it carefully
before you sign it - and do not hesitate to consult your attorney
about any provision that may seem ambiguous or not in your
Some leases consist of no more than an informal agreement
between two parties, but there are instances when formal
arrangements are essential. For example:
- A long lease must be registered against the title deeds
of the property being leased to be effective against
possible eviction by any 'third party', such as a new
purchaser of the property;
- When a property owner and tenant impose their own
formalities, the agreement and any variations must be in
- In KwaZulu-Natal, the former Transvaal and Free State,
where old statutes regulate certain leases signed before
22 June 1956.
Calculating the stamp duty
The Stamp Duties Act, 1968, has a complicated formula for
calculating the stamp duty on a lease. In complex cases you will
need expert advice.
The following explanation is, however, probably sufficient for
most simple cases:
PERIOD First determine the duration of the lease.
- If this has been fixed, say, for one year, you will not
have a problem;
- For an indefinite period - for example, a monthly tenancy
- with the rent payable monthly and terminable by one
month's notice, the period is fixed at two years;
- For a fixed period, with a renewal option, the original
period and the optional period are taken together to
calculate the duration of the lease. Should the option be
for an indefinite period, the optional period will be set
at two years for the purpose of stamp duty.
RENT After you have worked out the lease's duration, calculate
the rent you would have paid in this time. Duty is calculated on
the total rent paid for the duration of the lease. For example, a
flat with a rent of R900 a month, on a two-year lease would yield
R900 x 24 months = R21600. You can calculate the stamp duty on
the basis of these rates:
- A lease for five years or less: 25c for each R100;
- More than five years, but less than 10 years: 40c for
- More than 10 years, but less than 20 years: 55c for each
Note that, should the total rent collected over the period
exceed the selling value of the property, the duty will be
calculated on the selling price of the property, if the South
African Revenue Service agrees.
Here is an example of how to work out stamp duty:
A property owner lets property for a year, giving the tenant
an option at the end of that period to turn the tenancy into an
indefinite one. The rent is R900 a month.
The period of the lease for the purpose of stamp duty is:
One year, initially.
Plus two years for the indefinite option.
Equals three years, or 36 months.
The total rent is 36 x R900 = R32400. Because the lease is for
five years or less, the rate is 25c per R100 of the R32400, so
the duty is:
32400 / 100 x 25 = R81
Revenue stamps worth R81 should be attached to the lease.
Property owner and tenant
The parties to a lease agreement are usually the property
owner and tenant. Each has specific duties in law that must be
adhered to - unless both have agreed to vary or qualify these
duties in particular ways.
In most written leases of residential property, common-law
duties will be varied - usually in favour of the owner.
DUTIES OF THE PROPERTY OWNER The prime duty
of a property owner is to give a tenant occupation and control of
the property. Furthermore, the owner has to maintain the property
in its proper condition, subject to fair wear and tear (defined
as the 'unavoidable consequence of the passage of time'). The
owner must also ensure that normal running repairs to the
property are carried out.
A second important duty of the owner is a guarantee that the
tenant will enjoy the undisturbed use and enjoyment of the
property for the duration of the lease. This duty has three
- The property owner must not unlawfully interfere with the
tenant's rights although he or she is entitled, in
certain circumstances, to interfere lawfully if, for
instance, the tenant has to vacate the premises
temporarily to allow necessary repairs to be done.
Although an owner also has a right of inspection, this
right must be exercised in a reasonable manner.
- The owner must protect the tenant against being disturbed
by 'third parties' who may claim a stronger right to the
property than the tenant. For example, if you sub-let
property from a lessee whose lease is invalid (perhaps
because it has not been drawn up properly), you could be
evicted by the original owner of the property. If this
happens, the person who sub-let the property to you is
obliged to protect you from being evicted.
If you were evicted (and in most such cases you would be), you
would be entitled to sue the person who sub-let the property to
you for breach of contract,
because he or she agreed to let you have the use of the property
- and obviously, if evicted, you would not have that use.
Note, however, that as soon as the original owner (or another
'third party' with a stronger claim to the property than
yourself) approaches you, you must notify the person who sub-let
the property to you to enable him or her to take timely action in
At the same time you must vigorously resist the third party's
- The owner is not bound to protect you against a
disturbance of your occupation by a superior force, such
as war or an act of God. Usually in a written agreement
of lease, total or partial destruction of the premises
allows you a rebate in rental and the courts have
followed this line.
DUTIES OF THE TENANT As a tenant, you also have duties towards
the property owner:
- Your main duty is to pay the rent. You are released from
this obligation only if the owner breaks the agreement
or, in certain circumstances, your possession of the
property is disturbed by superior forces (such as war or
an act of God). The date on which rent must be paid is
usually specified in the lease. In the absence of such a
provision, the general rule is that rent is payable in
arrears - either upon expiry of the lease, or, in the
case of periodic leases, on expiry of each period (one
month if rent is paid monthly).
- You must use the property for the purpose for which it
was let. If this is not specified in the agreement, you
may use it for its 'natural function', as a flat or
dwelling. You must always use the leased property in a
- When you vacate the property, it must be in the same
condition as when you took possession of it, allowing for
reasonable wear and tear. If the property is damaged by
your guests, servants or children, you are held
Protection for the tenant if the property is sold
If the flat or house you are renting is sold by the owner, the
protection that you are given against possible eviction will
depend on the type of lease you have signed. In so-called short
leases (under 10 years) the rule of 'huur gaat voor koop' applies
- that is, the contract of lease takes precedence over the
contract of sale.
SHORT LEASE If the property is not subject to
rent control you are protected from eviction for the period of
the lease for as long as you are in residence.
For example, if you have recently agreed, either in writing or
verbally, to a year's lease, you will be protected until that
lease has expired unless, of course, the lease contains a clause
specifying a period of notice.
If the period of the original lease has expired, your lease
becomes 'periodic' - in other words, it is governed by the
periodic payment of rent. If payment is made once a month, you
can be given a calendar month's notice.
If you are not in occupation of the premises, a 'short lease'
will still protect your tenancy, as long as the purchaser is
aware of the existence of the lease. It will not protect you if
you are not occupying the property and:
- The purchaser is not aware of the existence of a lease;
- The property was sold to a creditor of the original
If the property is given or bequeathed to the new owner (that
is, not having been sold to him or her), then you are protected
regardless of whether the new property owner knows of the lease
or not or whether you are in occupation or not.
If you are renting property from a person who is not the
original owner of the property, but who has 'usufructuary' rights
(rights of use and enjoyment) over the property, your tenancy
will end if the person loses those rights.
LONG LEASE If you have a long lease (10 years
or more), you are protected from eviction by any new owner,
provided that the lease is registered against the title deeds of
the leased property in the Deeds Registry. The effectiveness of a
long lease depends upon the date on which it was concluded.
Different rules apply, depending on whether the lease was signed
on or after 1 January 1970, or before that date.
If you do not pay the rent
Obviously, if you do not pay your rent, you will have broken
the terms of the lease and will have to vacate the property.
Furthermore, an owner may also have the right to attach your
moveable goods on the property in lieu of rent. This is known as
a tacit hypothec.
Unless the lease provides to the contrary, an owner has a
tacit hypothec over moveables brought onto the property, and over
fruits and crops produced by the property. This is a security for
arrear rent; it means that the owner may attach the moveables and
have them sold to pay off unpaid rent. The owner can also, in
certain circumstances, attach goods on the property belonging to
a third party, for example, a hire-purchase company. (See credit agreements.)
Before this can be done, the owner must ensure that the
following requirements have been met:
- The goods must have been brought onto the leased premises
with the knowledge and consent of the company;
- The tenant must have intended to use the goods
- The hire-purchase company fails to inform the property
owner that it is the owner of the goods;
- The property owner is unaware that the goods do not
belong to the tenant (but to the hire-purchase company).
The hypothec exists only in respect of arrear rent (not
in respect of arrear electricity or similar charges) and
only in regard to goods actually present on the leased
premises at the time.
A lease usually ends in the same way as any other contract:
when the agreed duration ends, cancellation following breach of
contract or by mutual agreement. Note that there are also three
special circumstances in which a lease may be ended:
TERMINATION BY NOTICE If you have a lease on
a property for a fixed period, but you have to leave before the
agreed time, tell the owner or the agent as soon as possible. He
or she may be able to find another tenant to replace you.
Remember, though, that even if you do not occupy the property,
you will be liable for the rent until another tenant leases the
In the case of a 'periodic' lease - of indefinite duration,
but where the rent is payable at fixed intervals - the lease is
terminated by notice given by either the owner or the tenant.
This would be the case where a tenant remains in occupation after
the written lease has expired. If no notice period is set out in
the lease, 'reasonable notice' must be given.What is 'reasonable'
is usually determined by the 'periodic' payment of rent (hence
the description 'periodic lease'). If, for instance, rent is
payable on a monthly basis, a calendar month's notice must be
TERMINATION BY DEATH A lease terminates on
the death of one of the parties in the following circumstances:
- If it is provided for in the lease;
- If the lease stipulates that the owner can terminate the
agreement whenever he or she wishes and the owner dies.
- If the lease provides that the tenant can terminate the
agreement whenever he or she wishes and the tenant dies.
TERMINATION BY INSOLVENCY A lease does not
end if the owner becomes insolvent.
Should the property be sold, the sale is still subject to the
lease under the rule of 'huur gaat voor koop' whereby the
contract of lease takes precedence over the contract of sale.
This does not apply to long leases.
If the tenant becomes insolvent, the trustee of the insolvent
estate may terminate the lease by written notice to the property
owner. The trustee must, within three months of being appointed,
inform the owner if the lease is to continue and go on paying the
rent in time. If this is not done, the lease is terminated.