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I am a qualified Attorney. I specialise in Property Law, Commercial Law, Corporate Law and Trusts.
 
Please visit our website at www.prop-law.co.za for more details.
 
I am an elected Committee Member of the Property Committee of the Association of Pretoria Attorneys and through my involvement, I like to ensure that I am constantly at the "sharp-end" of Conveyancing Practice.

I am the elected Chairman on the Gauteng Council of SAPOA. The South African Property Owners Association (SAPOA) is the biggest and most influential institution in the property industry. SAPOA members control about 90% of commercial property in SA, with a combined portfolio in excess of R150 Billion (about $22 Billion). I am also on the National Council and the National Legal Committee of SAPOA.
 
Member of the Institute of Directors South Africa and Member of the Sirdar Governance Panel.

18 July 2013

Property owner's rights 'are absolute'

Property owner's rights 'are absolute'

The owner's right to a property is a real right that can be enforced against the 'whole world'. It is, in a sense, an absolute right.

A tenant decides to rent out the outbuilding and the garage since the lease does not stipulate that she cannot sub-let.

Can the landlord, who is the owner, demand a share of the tenant's rental income?
Let us take another example where the landlord/owner discovers that his tenant sells lemonade and orange juice made from the fruits taken from the trees planted by him on the property leased to the tenant.

Does the landlord have a claim to the tenant's income or can he prevent the tenant from accessing the fruits?
Can the owner not enforce his rights, since he has an absolute right?
The owner's right also includes what is legally referred to as jus abutendi, that is, he is entitled to alter and destroy the property, which a tenant cannot do.

The tenant (lessee) has undisturbed use and enjoyment that encompasses the right of using the property ( jus utendi); and the right to gather and enjoy the civil and natural fruits of the property ( jus fruendi).

A lease contract of an immovable property is like an expandable or flexible power, which is compressed or restricted by the rights given to the tenant, and later returned to its original form and power at the expiry of the lease.

The landlord is entitled to rentals, which is the main income.

Does the landlord have rights to the income of the subtenant, or from the fruits?

The tenant's limited real right allows the tenant to derive rental income and income from the fruits on the property, and to use and distribute or dispose of the fruits. This right can be limited in the lease, whereby the landlord could state that he is entitled to all the fruits, or share the profits, in the event the tenant sells the fruits.

Substitute fruits with, for example, an outbuilding or a garage on the property - unless there is a specific clause in the lease that prohibits the tenant from sub-letting, the tenant can sub-let and enjoy the civil fruits.

In Neebe v Registrar of Mining Right 1902 TS 65, regarding a tenant, chief justice Innes at page 81 said: 'He had no right to destroy and appropriate the substance of the thing hired, but only to enjoy the benefit of its use and take the fruits.

'The claimholder, on the other hand, only enjoys the use of the surface of his ground for purposes subsidiary to the one main object of his tenure, and that is the extraction of minerals.

'The essence of his position is the right to take out portion of the soil of the claim and win the minerals from it; this was the very thing that the lessee could not do.'
Judge Wessels, at page 86 in the same case, said the following about the claimholder: 'It gives him the right, too, of destroying the whole nature of the ground he occupies, and of taking away all the precious minerals under the surface.

'In legal, technical language the lessee has the jus utendi and the jus fruendi, i.e. the right to use the thing let, and the right to gather such fruits as grow and ripen on the land. There the rights stop. The jus abutendi forms no part of the lessee's right.

'Now the claimholder has the jus utendi to enable him to take out the precious minerals, and the jus abutendi or right of taking the precious minerals away.'
An owner's absolute right is restricted by the terms of a lease, which allows a tenant limited real rights.

Tenant Issues
Daily News
Dr Sayed Iqbal Mohamed
Chairman, Organisation of Civic Rights

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