Landlords are often tempted to take to extreme measures when it comes to defaulting tenants, but these measures can have very serious consequences.
In a moment of frustration,
it can be very tempting to arrange for electricity or water supply to be suspended, change the lock on the front
door, or even to remove certain items from the leased premises, just to give tenants the nudge that they need to
perform their obligations. Unfortunately, however, all of the current consumer-friendly legislation aside, in terms
of the South African common law, it is unlawful under any circumstances for a landlord to interfere with a tenant’s
“peaceful and undisturbed” use of the leased premises, unless correct legal procedure is followed. Such an act is
termed “spoliation” and can have very serious consequences for the landlord.
The premise behind spoliation is that it is illegal to “take the law into one’s own hands”, regardless of whether the
reason behind such action is based on a valid, lawful claim or not.
Where an act of spoliation occurs, a tenant has
a number of remedies at his or her disposal, including counter-spoliation and applying to either the Rental Housing
Tribunal or the Courts for urgent relief.
In the case of counter – spoliation, the tenant may legally immediately take action to remedy the situation, such as
restoring water or electricity supply or re-entering the premises, thus defeating the purpose of the actions of the
landlord.
The most widely utilised remedy available to tenants, however, is to apply for an urgent interdict,
known as a
mandament van spolie.
In the case of a residential lease, this can be done through the Rental Housing Tribunal
or through the Courts.
In the case of a commercial lease, only the Courts may be approached for relief.
The application
is done on an urgent basis, meaning that it can be heard in a matter of days. In coming to its decision, the Court
will not take into account the underlying circumstances, only whether the tenant was in peaceful and undisturbed
possession of the premises and/or goods at the time, and whether the landlord followed due legal process when taking
any action. As such, the landlord will invariably be on the back foot from the outset. Furthermore, where application
is made to Court and the Court finds in favour of the tenant, it may order that the landlord pay the tenant’s legal
costs which, given the urgency of the application, will invariably be substantial.
In the case of a commercial lease in particular, the tenant may suffer substantial damages as a result of not being able
to operate its business. In such an instance, the tenant will be entitled to claim such damages from the landlord.
Furthermore, where a landlord locks a tenant out of the premises, in addition to constituting spoliation, the lock-out
can also be deemed to be an eviction, and therefore amount to an infringement of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act No 19 of 1998 (“PIE”).
Ultimately, therefore, as frustrating as it may be, it is always advisable to adhere to correct legal process. TPN is
always willing to guide clients in the right direction, so as to ensure that the situation is resolved in the correct
manner.
Watch
TPN’s Video on Unfair Practises for more information.