Don't get attached too soon

Posted 20 August 2020

Jan-Gerhard Oosthuysen, Candidate Attorney under supervision of Director, Denver Vraagom

The current global pandemic, the SARS-CoV-2 virus which gives rise to the disease more commonly referred to as Covid-19, has forced us all to adjust and accept a new sense of “normality” and it has changed many of our day-to-day interactions with one another, and property law relationships within this context is no exception.

The purpose of this article is to understand the intricacies of certain instances which may arise, and to understand the law relating to such intricacies and the possible remedies which may be available to prevent unforeseen and unanticipated disputes.

As a point of departure let us consider the following simplified scenario, Mr X leases a residential property from lessor Mrs Y and moves into the leased property during January 2020. As a matter of comfort and luxury Mr X installs and affixes an air-conditioning unit within the property, doing so in the absence of a further written agreement entered into with Mrs Y permitting him to do this. The negative global impact of Covid-19 is wide-ranging, and the far-reaching consequences thereof are that Mr X loses his employment. Mr X is placed in the untenable position of having no other alternative but to seek to cancel his lease agreement entered into with Mrs Y and vacate the property.

What is the position in relation to the air-conditioning unit installed by Mr X? For illustrative purposes, we will limit the ambit of our point of interest herein to the common law maxim, superficies solo cedit (omne quod inaedificatur solo cedit), loosely translating to the owner of a parcel of land is also the owner of everything permanently attached to the land by accession (accessio).

Accession takes place when two assets are affixed to one another via human activity. In this instance, movable property is affixed to immovable property. The effect herein is that the movable property loses its independence and becomes part of the immovable property.

Insofar as the permanent attachment of a movable object to land relates, the position held in the case of MacDonald v Radin and The Potchefstroom Fairies and Industries Co Ltd (1915) (A), set-forth three guiding factors:

  1. The nature of the movable thing (determined objectively);
  2. The manner and degree of the attachment (determined objectively); and
  3. The intention of the owner of the attachment (determined subjectively).

Practically speaking, a court may reflect upon the afore-mentioned guiding factors to determine whether an attachment was meant to be permanent or not.

For the continued purpose of our simplified scenario, where does this position leave the lessee, Mr X?

To answer this question, consideration could be given to the nature of the attachment which could be classified into three categories: (1) necessary improvements (e.g. replacing a faulty geyser), (2) useful improvements (e.g. installing a new towel rack) and (3) luxurious improvements (e.g. installing an air-conditioning unit).

Having regard to the above, it may transpire that Mr X contemplates the removal of the air-conditioning unit or instituting a claim for unjustified enrichment action (where one person (Mrs Y) receives a benefit or value (air-conditioning unit) from another (Mr X) at the expense of the latter without any legal cause for receipt or retention of the benefit or value by the former) against Mrs Y.

There is no real stimulus for unjustified enrichment in South African law. It is not an action often brought in the South African courts and therefore, it lacks legal certainty.  Even so, pursing such an action can be a drawn out legal dispute, characterised by delays and taking years to finalise. In the circumstances, it is advanced that it would be sufficient for Mr X to rely on the common law applicable to the laws of property or contract. Should the lease agreement (“contract”) be silent on the legal position in relation to the affixing of attachments, the common law property position will apply. In terms of common law, luxurious and useful improvements may be removed by the lessee prior to the expiry of the lease agreement, provided that they can be removed without causing damage to the property. Necessary improvements may not be removed.

In respect of accession of movable assets, the wiser remedy will always be to rather act pro-actively by addressing any possible improvements to be made to the immovable property by a lessee, in the course of the operation of the lease agreement, before all initials and signatures are finally appended to the lease agreement itself.

Inaedificatio en die ius tollendi, LitNet Akademies, 2014, Ina Knobel
Introduction to Property Law, 7th Edition, 2016, A.J. van der Walt & G.J. Pienaar.
Principles of the Law of Sale and Lease, 3rd Edition, 2013, G. Bradfield & K. Lehmann.
Sectional Titles and Other Fragmented Property Schemes, 2010, G.J. Pienaar.
Case Law:
Business Aviation Corporation (Pty) Ltd v Rand Airport Holding (Pty) Ltd 2006 (6) SA 605 (SCA)
Konstanz Properties (Pty) ltd v WM Spilhaus (WP) Bpk 1996 (SCA)
Macdonald Ltd Appellants v Radin NO and the Potchefstroom Dairies & Industries Co Ltd Respondents 1915 AD 454