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Case 7 - Unlawful Use by Tenants

Published online by Cambridge University Press:  26 May 2022

Björn Hoops
Affiliation:
University of Groningen, The Netherlands
Ernst J. Marais
Affiliation:
University of Johannesburg
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Summary

Variation 7.1. Rental agreement (I)

Valla owns a piece of land, which is unfenced. She concludes a rental agreement with Olaf, who starts to live on her land in accordance with the agreement. Olaf stops paying rent to Valla and continues to live on the land. This situation continues for 30 years without Valla objecting to it. Upon her return one week after the completion of this 30-year period Valla institutes proceedings to eject Olaf from her land.

Variation 7.2. Rental agreement (II)

See Variation 7.1. There is no fence between Valla’s land and the neighbouring piece of land, which belongs to Sellina. Olaf, who diligently pays rent, starts using a part of Sellina’s land just beyond the actual boundary of Valla’s land and erects a fence around this part and the rest of Valla’s land. After 30 years since the erection of the fence, Sellina institutes proceedings to eject Olaf from the part beyond the boundary of Valla’s land.

KEY ISSUES

VARIATION 7.1.

The reporters must examine whether a tenant can acquire their landlord’s land through long-term use after s/he stopped paying the rent.

VARIATION 7.2.

In addition to Variation 1.1., this case raises the issue of whether a tenant’s unlawful use of a piece of land that is adjacent to the rented land and not owned by their landlord may result in an acquisition through long-term use, either by the tenant or the landlord.

ALBERTA, CANADA

OPERATIVE RULES

Variation 7.1.

In Canada, a tenant’s failure to pay rent does not automatically result in the termination of the lease, but merely gives the landlord a choice between enforcing the lease and bringing the estate to an end by retaking possession of the demised property, provided that payment of rent is made a condition of the lease. In the case of a tenancy governed by Alberta’s Residential Tenancies Act, the landlord’s right to terminate the lease, even for non-payment of rent, is restricted and subject to approval by the courts. While the lease is in force, the tenant’s possession is lawful and not adverse, and the clock does not run against the landlord.

Type
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Publisher: Intersentia
Print publication year: 2022

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  • Unlawful Use by Tenants
  • Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
  • Book: The Acquisition of Immovables through Long-Term Use
  • Online publication: 26 May 2022
  • Chapter DOI: https://doi.org/10.1017/9781839702419.011
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  • Unlawful Use by Tenants
  • Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
  • Book: The Acquisition of Immovables through Long-Term Use
  • Online publication: 26 May 2022
  • Chapter DOI: https://doi.org/10.1017/9781839702419.011
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Unlawful Use by Tenants
  • Edited by Björn Hoops, University of Groningen, The Netherlands, Ernst J. Marais, University of Johannesburg
  • Book: The Acquisition of Immovables through Long-Term Use
  • Online publication: 26 May 2022
  • Chapter DOI: https://doi.org/10.1017/9781839702419.011
Available formats
×