A Landlord, who struggles to obtain rental payments from his Tenants, may demand, in writing to his Tenants, the amount of rental payment that is in arrears. Should the Landlord be unsuccessful and a period of 7 (seven) days or longer has lapsed, the Landlord may consider instituting legal proceedings in accordance with the Rental Housing Tribunal or in a Court of Law to recover the unpaid rental.
To protect the Landlord in reclaiming outstanding amounts, Section 31(1) of the Magistrate’s Court Act of 1944, as amended (“the Act”) grants the Landlord a tacit hypothec for arrear rental: “which is residual and not susceptible to exclusion by contract”.
The Landlord’s Hypothec
Section 31(1) of the Act states as follow:
“when a summons is issued in which the rent of any premises is claimed, the plaintiff may include in such summons a notice prohibiting any person from removing any of the furniture or other effects thereon, which are subject to the plaintiff’s hypothec for rent until an order relative thereto has been made by the court.”
In order for this hypothec for rent to be in effect, the movable property will have to be identified by the Sheriff to determine the value of the such property.
Section 31(2) of the Act provides that the messenger shall, if required by the Plaintiff and at such Plaintiff’s expense, make an inventory of such furniture or effects. Note must be taken that Section 24 of the Magistrate’s Court Amendment Act substituted the expression “messenger” with “Sheriff”.
The issue arises when the Plaintiff/Landlord requests the Sheriff or Deputy Sheriff to do an inventory on the leased premises and Sheriff finds the premises locked and the Occupant not present. Section 31 is silent on the issue of locked premises.
The Rules clearly state that Sheriff may use force when executing in terms of a Warrant of execution. It may be contended that it was the intention of the Legislature to allow as little damage as possible to be done during the execution of Debtor’s property with due respect for his or her dignity and
property in mind.