The Sunday Mail
Legal Matters with Arthur Marara
The concept of huur gaat voor koop is found under the Roman Dutch law principle which pertains to property.
It simply means that hire takes precedence over sale.
It means that where the seller entered in a lease agreement prior to the sale, the tenant is protected from eviction where the property is sold to a third party.
The tenant is entitled to remain in occupation of the property until his/her lease expires.
[See: W & D Consultants (Pty) Ltd v Doran 2015 (1) ZLR 912 (H) at 923C- G DUBE J]
The law effectively substitutes the buyer for the seller as lessor and, as long as the lessee fulfils his/ her obligations, the seller cannot evict the lessee. No new lease comes into existence between the new lessor and the lessee, and there is no need for a cession of rights or an assignment of obligations. [See Genna-Wae (Pty) Ltd v Medio-Tronics (Natal) (Pty) Ltd [1995] 2 All SA 410 (A)].
‘Huur gaat voor koop’ only applies where the property is alienated (for example, sold, exchanged or donated) and not, for example, where the owner’s rights are transferred as a consequence of expropriation.
It, therefore, only applies if there has been a succession of rights.
The purchaser (or the other person in favour of whom such property has been alienated) therefore cannot evict the tenant, but is obliged to abide by the lease.
The owner of the immovable property (new owner) is thus prevented from transferring rights to another (which the tenant enjoys).
No new lease comes into existence between the new landlord and tenant.
Nor is there a need for cession of rights or an assignment of obligations.
The lessor may not necessarily require the consent of the lessee to sell, and, in the event of a sale, the lessee’s rights are protected.
Essential elements to be proved
In the case of W & D Consultants (Pty) Ltd v Doran 2015 (1) ZLR 912 (H) at 923C- G DUBE J, the court held that: “A tenant wishing to rely on the concept should show that he entered into the lease agreement with the previous owner before the sale.
He should show that he is bona fide and did not enter into a lease agreement fraudulently in order to avoid an imminent sale or a claim by creditors.
He must also show that the new owner was aware of the lease agreement and bought the property with the knowledge of the lease agreement.”
It is a requirement that the tenant should abide by all terms of the contract and continue to pay his rentals to the new owner.
Failure to do so amounts to breach.
The new owner only has an obligation to adhere to the lease agreement if the tenant is willing to pay rentals.
Where the tenant fails to pay the rentals agreed to with the previous owner, he commits a breach and is liable to the new owner.
The tenant and new landlord must abide by the terms of the lease agreement.
The seller needs to ensure that the buyer of the property is aware that it is currently tenanted and that the tenants cannot be asked to move out before the end of their lease.
There are conflicting decisions about whether the concept of Huur gaat voor koop applies where there has been a sale in execution.
We shall look at this in future articles, and just share some perspectives on the existing authorities on the subject.
LEGAL DISCLAIMER: The material contained in this article is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis.
They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practising law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
