“Landlords’ rights are not protected by the South African legal system”. This is a comment that is heard very often when having any conversation regarding property law. It is crucial to understand the rights pertaining to property ownership to appreciate the legislation relating to this, and even more importantly, reinstall investors’ confidence in the property market.
There are a number of rights pertaining to immovable property. Amongst these rights, are the rights of ownership and occupation. These two rights can be separated from each other completely and can be dealt with separately. The right of ownership is a complete right comprising of a number of rights. The right of ownership was established and defined in the Roman law, incorporated in the South African Law, and is constitutionally protected. This is a real right, meaning that it is a right that relates to a specific thing, in this case, the property. This right allows the owner to use the property, make alterations, even destroy the property, obviously within the boundaries of other laws that might relate to the specific property, and to sell or to encumber the property.
The right of occupation is one of the rights in the collection of ownership rights. This right, on its own, is not protected by the Constitution. However, section 26 of the Constitution does prescribe that a person may not be deprived from this right without a Court ordering this. The right of occupation gives the holder the right to have undisturbed use and enjoyment of the property. An owner can elect to keep this right all to herself and enjoy this right by personally occupying the property, or separate this right and trade with it. This is done at the discretion of the owner. In return for giving up this right an owner may be compensated, typically in the form of rental payments.
Should an owner decide to trade with this right, and lease out the property, as is typically seen in the case of a property investor, legislation has been enacted to protect the occupant of the property. The need arose for this type of legislation, as the right of ownership is an exceptionally strong right and in order to stimulate the rental industry, it was necessary to create specific rights for occupants. It is important to note that the occupants would not possess certain rights in terms of the common law. Imagine a situation where an owner would be allowed to kick a good tenant out of a property just because the landlord feels like it. The effect of this legislation is obviously that a landlord can enforce certain rights, like the right to evict an illegal occupant only when obtaining a court order. As you can now see, this does not mean that the landlord does not have any rights. The contrary is true, because if tenants do not have sufficient protection against potentially unsavoury landlords, the rental market and effectively the entire property industry as a whole would collapse.
In conclusion, it is essential for property investors to understand that if you elect to rent a property out, you choose to separate one of the rights to your property and thus place yourself in the position to collect rental income thereon. However, this choice does take away all of your rights to your property, you still retain the strongest collection of rights, being that of ownership.
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