When can a landlord cut a tenant's electricity or change the locks to the premises?
Category Property Tips
The short answer to this, is only with the tenant's consent or a court order. A landlord in dispute with a tenant may well be tempted to avoid the delay and cost of litigation and take eviction or enforcement action, but no matter how good your case may be, taking the law into your own hands automatically puts you in the wrong.
An important principle in our law, is the spoliation remedy in the event of the wrongful deprivation of someone's right of possession. A 2012 Supreme Court of Appeal decision stated that spoliation aims to prevent self-help and people taking the law into their own hands. The cause for possession is irrelevant. The fact that possession is wrongful or illegal is also irrelevant, as that would go to the merits of the dispute.
The tenant's right to immediate return of possession
The law requires that you approach a court for assistance as self-help is not an option. If you remove the tenant's access to the leased premises without a court order, you face having to immediately restore possession to the tenant via a "spoliation order". The court is not interested in how strong or weak your actual case against the tenant is, or whether you are the owner, nor whether you have any legal right to possession. It is only interested in how you dispossessed the tenant.
For a spoliation order, all the tenant has to prove is that he/she was in "peaceful and undisturbed possession" and was "unlawfully deprived of that possession." If the tenant consented freely and genuinely to the dispossession, then it would be lawful. If not, it was unlawful. Spoliation could take place in numerous unlawful ways such as by force, threat of force, stealth, deceit or theft, or just without consent.
A practical example recently decided by the High Court involves an internet café business owner who was locked in dispute with her landlord over its method of electricity billing. The landlord's response was to firstly cut electricity to the premises and then to change the locks.
After trying without success to resolve the dispute, the tenant applied for a spoliation order. The landlord did not dispute that the applicant was in possession of the premises, nor that he had dispossessed her with neither consent nor court order. What the landlord did argue was that the tenant's application was not urgent, that it should have been brought in the magistrate's court and not in the High Court, and that it was really not about spoliation but about the tenant trying to enforce her rights in terms of the lease.
The Court rejected all these contentions and held that the landlord had committed two separate acts of spoliation. The first was disconnecting the electricity supply and thus denying the tenant use of the premises ("a limitation of her rights as a possessor") and the second, changing the locks, thus dispossessing her entirely. The landlord was ordered to pay all costs, immediately restore possession of the leased premises to the tenant and immediately re-connect the electricity.
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Author: Gina Meintjes
