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LEASE (Definition (Common Law ((ABSA Technology Finance Solutions (Pty)…

- - - - ABSA Technology Finance Solutions (Pty) Ltd v Michael’s Bid A House CC 2013 3 SA 426 (SCA)
- - - - Black v Scheepers 1972 (1) SA 268 (E)
      - Jordaan NO and Another v Verway 2002 (1) SA 643 (E)
      - The exception to the general rule above arises where the tenant is leasing agricultural land. In this instance the rent may be paid in money or in ‘fruits’
        
        If the rent is not certain it must be ascertainable otherwise there exists no lease between the parties. Parties may agree on a definite quantity of produce or an agreed proportion of the gross produce.
    - - The parties to the lease agreement may agree on the rental increase and may include such increase in their agreement. In the absence of any agreement between the parties, the increase proposed by the landlord must still be reasonable.
      - An unreasonable increase imposed by the landlord may be viewed as an unfair practice in terms of the Rental Housing Act and its Regulations. An unfair practice is a practice which has the effect of unreasonably prejudicing the rights or interests of a tenant or landlord. Where there is a dispute between the landlord and tenant with regards to the amount of rent payable, the parties may refer this dispute to Rental Housing Tribunal. The Rental Housing Tribunal may determine whether a rental increase is just and equitable in the circumstances.
        
        In coming to a just and equitable, to both landlord and tenant, the Tribunal must take the following factors found in section 13 (5), into account:
        -the prevailing economic conditions of supply and demand;
        -the need for a realistic return on investment for investors in rental housing; and
        -incentives, mechnisms, norms and standards and other measures introduced by the minister in terms of the policy framework on rental housing.
        
        However, a decision by the landlord to cancel the leases solely for the purposes of securing higher rentals, thereby prejudicing the rights of the tenant, may be viewed as an unfair practice.
        
        Maphango and others v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC).
        The court had to consider whether the landlord was lawfully entitled to exercise the bare power of termination in the leases solely to secure higher rentals.
        The court held that a landlord’s decision to terminate a lease on notice, even when permitted under contract or common law, may constitute an unfair rental practice when the purpose of the termination is to increase the rental in excess of that agreed to in the escalation clause or in excess of what is reasonable.
  - - - Bozzone v Secretary for Inland Revenue 1975 (4) SA 579 (A)
      - SA Pulp and Paper Industries (SAPPI) v Commissioner for Inland Revenue 1955 (1) SA 8 (T)
    - - The lessor promises the lessee undisturbed use and enjoyment of the thing: he does not promise that he owns the thing or that he is vested with the right to let it. It follows that a party may let property which he himself has no title to use.
      - The lessee in such a case is bound by the terms of the lease and may not dispute the lessor’s title. Thus a person who is not the owner of the property may let it and it is not open to the lessee to raise the lessors lack of title as a defence to a subsequent claim for rent or ejectment.
      - Therefore, if a lessor warrants that he is the owner when he is not, he can be held liable for breach of contract in the normal way. The same applies if he is unable to fulfil his obligations because of this lack of title.
  - - - 1.Fixed-period lease A fixed period lease runs from one fixed date to another fixed date and will terminate automatically on the expiration of the period (Therefore, there is a definite time period within which the lease is in effect.
        The lease will terminate at the end of the set date. Notice need not be given by either party.
        
        2.A lease until a certain event occurs Notice for termination need not be given. Unless a lease provides for termination on death, the death of either party will not terminate the lease. It will continue to bind the estate of the deceased of the deceased and surviving person.
        
        3.A periodic leaseA periodic lease arises where the lease runs from month to month, week to week or year to year. A periodic lease may be either express or implied. Where the parties agree to lease premises at a certain amount per month, and say nothing in respect of duration, then a periodic tenancy will be inferred. Periodic leases continue in force indefinitely until terminated by notice given by either perty. Notice must be given so as to expire at the end of the period of the lease. Therefore a weekly tenancy would require a week’s notice.However, with yearly tenancy the period of notice must be reasonable in the circumstance.
        
        4.A lease at the will of the landlord, tenant or either party In the case of a lease at the will of the landlord, tenant or either party, the party in whose favour the lease operates may terminates at any time without a period of notice failing which the lease will terminate on the death of the party of the party.
        In Friedman v Friedman 1917 CPD 268, the lease was at the will of the tenant. Because the lease agreement operated in the tenant’s favour (not the landlord’s), the court held that the landlord could not terminate the lease and that it would end on the death of the tenant.
      - The CPA applies to every transaction within South Africa which takes place within the ordinary course of the business of the supplier of the goods or services. Services include rental, which entails the temporary possession of a property by a consumer therefore private lease agreement is covered
        A lease agreement may not exceed a period of 24 month, unless a longer period is expressly agreed to and the landlord can show a demonstrable benefit for the tenant.
- - - - • Sec 5(1): reiterates the common law provision that lease need not be in writing in order for it to be valid.
      - • Sec 5(2): obliges the landlord to reduce the agreement to writing where the tenant requests this
      - • Sec 5(3): lists the implied terms that cannot be excluded by agreement between the parties.
      - • Sec 5(6): lists the information that must be included in a lease such as___.