The definition of a long lease
South African law draws a sharp line at ten years. A lease that stays below it is a short lease; one that meets or crosses it becomes a long lease subject to the notarial registration regime. Section 1(2) of the Formalities in Respect of Leases of Land Act 18 of 1969 (“the Act”) sets out three alternative ways a lease qualifies:
- Fixed term of ten years or more. A 10-year commercial lease, a 30-year mining-related surface lease, a 99-year residential ground lease — all are long leases from the moment the agreement is signed.
- For the natural life of the lessee or any other named person. Even a lease expressed simply as “for the lifetime of the lessee” qualifies, regardless of how old the lessee is when the lease is concluded.
- Renewable indefinitely at the lessee’s will, or in periods aggregating to ten years or more. A 3-year lease with a right of renewal “at the lessee’s election for successive 3-year periods” is a long lease if those periods can aggregate to ten years, even though no single term reaches that mark.
The Act’s exact words:
No lease of land which is entered into for a period of not less than ten years or for the natural life of the lessee or any other person mentioned in the lease, or which is renewable from time to time at the will of the lessee indefinitely or for periods which together with the first period of the lease amount in all to not less than ten years, shall, if such lease be entered into after the commencement of this Act, be valid against a creditor or successor under onerous title of the lessor for a period longer than ten years after having been entered into, unless- (a) it has been registered against the title deeds of the leased land; or (b) the aforesaid creditor or successor at the time of the giving of credit or the entry into the transaction by which he obtained the leased land or a portion thereof or obtained a real right in respect thereof, as the case may be, knew of the lease.
The section speaks only to leases “entered into after the commencement of this Act” — that is, after 1 January 1970. Leases concluded before that date are governed by the pre-Act common law. In practice, almost every lease a modern attorney encounters is post-1970.
Short lease vs long lease: what turns on the line
The distinction matters enormously in three situations: when the leased property is sold, when the lessor is sequestrated or liquidated, and when a mortgage bond over the property is called up.
A short lease (under ten years) is a purely personal right. It binds the lessor, but the lessee cannot automatically enforce it against a new owner who buys the land — unless the buyer expressly took subject to the lease. The Roman-Dutch maxim huur gaat voor koop (“lease goes before sale”) qualifies this in the short-lease context: it protects the lessee in occupation against ejection by the buyer, but only for the remainder of the existing term and only where the lessee was in possession at the date of transfer. For a full treatment of how huur gaat voor koop operates and its limits, see the guide on huur gaat voor koop.
A long lease can do more, but only if it is registered. Because a long lease subtracts from the lessor’s dominium, registration gives it the force of a real right — one that runs with the land and binds all successors in title, whether they knew of the lease or not. Without registration, a long lease loses its third-party force after ten years have elapsed since it was entered into, unless the creditor or successor actually knew of the lease at the time they acquired their interest. The lessee is therefore exposed: a buyer who acquires the property (for value, in good faith, without knowledge) after the ten-year mark can evict a lessee who holds an unregistered long lease.
Conversely, an unregistered long lease is not entirely toothless. It remains enforceable against the original lessor for the full term, and it binds any third party who knew of it — knowledge is a complete substitute for registration under s 1(2)(b).
A long lease is valid between the parties without writing
A common misconception is that a long lease must be in writing to be valid at all. That is wrong. Section 1(1) of the Act says the opposite:
Subject to the provisions of subsection (2), no lease of land shall be invalid merely by reason of the fact that such lease is not in writing.
Read together, the two subsections establish a two-tier regime:
- Between the parties (inter partes): the lease is binding regardless of whether it is written, notarially executed, or registered. An oral long lease creates a perfectly enforceable contract between lessor and lessee. Either party can sue for breach or specific performance.
- Against third parties: this is where writing, notarial execution, and registration become decisive. An unregistered long lease loses its force against a creditor or onerous-title successor of the lessor after ten years from conclusion — unless that third party had actual knowledge of the lease.
This explains why notarial registration is not optional for long leases in commercial or investment contexts. A lease that looks perfectly sound between the original parties can evaporate against a bank that takes a bond over the property, or against a buyer who acquires the property at a sale in execution, if it was never registered. The formality requirement is entirely about protecting the lessee’s position in the world beyond the two contracting parties.
The notarial execution and registration process — who must sign, what the notary attests, how the deed is lodged at the Deeds Registry, and what registration costs — is covered in the registration process guide.