A warning to landlords

BY MATTHEW KEMP - NOVEMBER 7, 2016

We have all experienced that moment where we are standing around the braai, talking about business, listening to somebody tell their story of that friend they have who leases property and whose tenants were not paying their rental.

They then go on to explain how that friend got a couple of thugs to move into the property and terrorise the tenant out of the front door and onto the street. Or better yet, how they removed the front door or changed the locks. No legal costs and no court delays. It is a great story, only lacking in one important aspect: legality.

Essentially, what the landlord is doing is taking the law into his/her own hands, potentially opening themselves up to unnecessary delays, extra legal costs and even a potential damages claim.

In our law there exists what is called spoliation. When you are in peaceful and undisturbed possession of something, and somebody unlawfully deprives you of that possession, you may bring a spoliation application, and have the court order that you be placed back in possession thereof. It does not matter whether you are not the owner of the property and the owner is the one who has removed it from your possession

To succeed in obtaining a spoliation order, the tenant needs to prove only two things –

(a) That s/he was “in peaceful and undisturbed possession of the disputed premises” and

(b) That s/he was “deprived of that possession without consent or recourse to law”.

It does not matter how many “lawyers letters” the landlord has sent the tenant, and how many months’ rent the tenant has failed to pay, the court will order the landlord to allow the tenant back into the property. The court is only concerned with the right to evict the tenant once a proper eviction application has been lodged.

The next time you are at the braai, and your friend is telling his/her story, you can alert them to the reality of a spoliation order.

If you are a landlord, our advice is to ensure up front that your tenant is both trustworthy and creditworthy. Have an attorney draft your lease agreement and make sure the tenant signs it. Do a proper “walk through” with the tenant at the commencement of the lease, insist on holding a reasonable deposit and if possible, take sureties.

Most importantly, we advise that if and when your tenant starts to fall into arrears or in some way seriously breaches the lease, do not take the law into your own hands. Instead seek legal assistance immediately!

Matthew James Kemp is an attorney at Goldberg & de Villiers and specialises in litigation. For assistance contact him on 041 5019801.

www.goldbergdevilliers.co.za