Introduction
The law of property consists of remedies for balancing competing interests in the relationship between landlords and tenants. Central to this research is the concept of the sublease agreement, which governs the terms under which immovable property is occupied and rentals are paid. When tenants default on their rental obligations, landlords are not left without remedy. The landlord’s tacit hypothec emerges as a significant legal tool, enabling the attachment of a tenant’s movable property as security for unpaid due rent. This article explores the legal principles surrounding sublease agreements and the nature of a tenant’s movable property. It also discusses the process by which the tacit hypothec is perfected and enforced, enlightening the reader regarding critical aspects of property law and rental security.
The Sublease Agreement
A sublease agreement is a contract in which a lessor agrees to let property to a lessee. Regarding immovable property, should the agreement last for more than three continuous years, it must be registered at the Deeds Registry. Under the agreement concerning immovable property, the lessor is known as a landlord and the lessee is considered a tenant. This relationship entails payment of rentals for the tenant to enjoy continued possession of the leased premises.
Invecta et Illata
Any movable property that a tenant brings onto leased premises is termed the invecta et illata. A tenant has a duty to notify the landlord when any movable property brought onto the leased premises belongs to a third party. This notification is done to avoid attachment of the third party’s property should the tenant fall back on payment of the rentals.
Rentals
Rentals constitute the income that the landlord gains from letting the leased premises to the tenant. The rentals are paid in the agreed-upon manner over certain intervals. Should the landlord accept payment of the rental in any other manner, it may be taken as a waiver of their right to be paid in the agreed-upon mode. The tenant must pay all rentals in time to avoid being in arrears regarding the payments.
The Landlord’s Tacit Hypothec
Security for rentals due and owing
Suppose a tenant falls in arrears regarding the rental payments, the landlord has recourse against the tenant. The remedy is realised in an application to restrain the tenant from removing the invecta et illata from the leased property. The landlord may acquire real security over the invecta et illata referred to as a tacit hypothec. The landlord’s tacit hypothec applies as security for due unpaid rentals. This security does not automatically arise when the tenant falls in arrears over the rentals, and a third party is not restrained from attaching the invecta et illata. Should the third party attach part or all of the invecta et illata or the tenant remove it from the leased premises, the landlord cannot have it attached afterwards. For the landlord to acquire rights in the invecta et illata, they must perfect the tacit hypothec by leave of court.
Perfecting the landlord’s tacit hypothec
Perfecting a tacit hypothec is done by application to Court or a claim for owing rentals with an automatic rent interdict. In the application or action, the landlord seeks to acquire real security by having the invecta et illata attached. Before obtaining an order of Court, the landlord cannot remove or dispose of the invecta et illata, or prevent its dissipation by locking it in at the leased premises. The tenant would have a claim for spoliation against the landlord should the latter retain the invecta et illata without an order of Court. When the Court grants the order perfecting the tacit hypothec, the tenant is precluded from removing the invecta et illata from the leased premises until the owing rentals are paid in full.
Should the tenant then fail to pay the rentals when the landlord sues out a writ of execution against the tenant, the landlord can proceed to have the invecta et illata sold in a public auction by a deputy sheriff. The proceeds of the auction are then used to satisfy the writ. The tacit hypothec is enforceable against the tenant and third parties. For instance, when the tenant is declared insolvent, the tacit hypothec renders the landlord a secured creditor of the insolvent estate. When the invecta et illata is sold by the trustee of the tenant’s estate, the proceeds of the sale of the invecta et illata must be applied to the rental debt first. However, insolvency matters constitute an exception to the rule of perfecting the tacit hypothec. The landlord need not perfect the tacit hypothec to enforce it against an insolvent estate.
Conclusion
The landlord’s tacit hypothec is a real security entitling them to attach the tenant’s movable property found on the leased premises at the time rentals remain due and owing. The rentals must be due and owing at the time the landlord enforces the tacit hypothec. To enforce the tacit hypothec, the landlord must have perfected it through an application to Court or an action for claiming rental with an automatic rent interdict. Perfecting the tacit hypothec has the effect of attaching the movable property and interdicting the tenant from removing it from the leased premises. Should the movable property be sold, the proceeds must first be applied to the rental debt.
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