WHAT IS A LIEN AND WHEN CAN IT BE USED?
[an Article contributed by Durban Law Firm: Fawzia Khan & Associates]
Broadly speaking a lien may be described as a right of retention which a person has over some else’s property because of some contractual obligation.
A lien allows the person who has incurred expenditure or spent money on someone else’s property, to retain that property in his possession until he has been compensated by the owner for what he has spent on that property.
This right is applicable against all third parties and indeed the entire world. The term used in these instances would be unjust enrichment. This is when a bona fide possessor of a property is allowed on the ground of unjust enrichment to claim compensation from the owner of the property for all necessary and useful expenses he has incurred. An example where a lien could apply could be if an occupier of a house who is not the owner (for example a tenant) has made certain improvements to the property which he occupies. This right of retention is called a debtor and creditor lien.
There are many types of liens, including a real lien, improvement lien, an enrichment lien or a salvage lien. It’s important to remember that even though a person may have spent a considerable amount of money improving someone else’s property, the “creditor” will not be compensated for 100% of all his expenses, even if he was able to produce invoices for all the money spent on improving the property.
This is because the improvement has to be identified as to whether it was a necessary, useful or luxurious expense that was incurred.
Each of these category of improvements carries a different set of claim allowance.
The Original Full Article can be Viewed here: → https://www.findanattorney.co.za/content_liens-explained