Case Name:
Guman NO v Ansari & others [2011] ZAGPJHC 124 (23 September 2011)
Area of Law:
Property (Lien)
Brief facts/summary:
The applicant sought an order for the eviction of the first respondent and anyone occupying the property through her of certain premises, same being the main asset in the applicant’s late father’s estate.
One of the three defences raised by the first respondent in this case was that she had an improvement lien of approximately R70 000.00 (Seventy Thousand Rand) in respect of the property and as a result would be entitled to remain in possession of the premises until she had been paid out for such lien.
The court held that:
“a lien (right of retention, ius retentionis) is the right to retain physical control of another’s property, whether movable or immovable, as a means of securing payment of a claim relating to the expenditure of money or something of monetary value by the possessor (termed “retentor” or “lien holder”, while exercising his or her lien) on that property, until the claim has been satisfied. A person who has spent money or done work on another person’s property generally (my emphasis) has a right of retention over that property, operating against the entire world. This right may be either a real lien, a salvage and improvement lien, or an enrichment lien…”
However the court further pointed out that in order to successfully raise the defence of a lien, (in this case an improvement lien) the respondent would need to allege and prove the following:
that the first respondent was in lawful possession of the property;
- the expenses that were incurred by the first respondent were necessary for the salvation of the property or alternatively useful for the improvement of the property;
- the actual expenses and the extent of the enrichment of the plaintiff (both would need to be proved because the lien only covers the lesser of the two amounts);
- that the plaintiff’s enrichment was unjustified; and
- that there was no contractual arrangement between the parties (or third person) in respect of the expenses.
The court found that despite the fact that the first respondent previously occupied the property with the consent of the now deceased owner, she was now occupying the property without the executor’s permission and this was therefore unlawful. In light of this, the first respondent would be precluded from using the property for her own benefit.
As a result, the first respondent failed in making the necessary allegations required to raise the defence of an improvement lien.
Importance/value:
The general principle that applies to (real) security is that in the absence of an agreement to the contrary, the secured party is not permitted to use the encumbered asset for his or her benefit and this principle also applies to liens.
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