It’s very tempting, when you have a bad tenant who doesn’t pay his/her rentals or otherwise remains consistently and unapologetically in breach of your lease agreement, to slap the biggest and strongest padlock you can find onto the front door/driveway gate to bar him from further access to the leased premises.
But don’t do it! By taking the law into your own hands you immediately put yourself in the wrong and can land yourself in all sorts of trouble with unnecessary delays, extra legal costs, and perhaps even a damages claim.
The recent High Court case of Taddese and Others v Peer NO and Others (5250/2016)  ZAKZDHC 26 illustrates.
The landlord who locked the gate and paid the price
- The tenant of four sets of commercial premises allegedly –
- Failed to honour an acknowledgment of debt that the tenant had previously signed in favour of the landlord (presumably for rental arrears), and
- Sub-let a portion of the commercial premises to some 150 people as informal accommodation without the landlord’s prior permission.
- Once the landlord found out about this, he put a lock on the entrance gate to deny access to the tenant and his sub-tenants.
- The tenant immediately approached the Durban Division of the High Court for urgent spoliation relief.
To understand the outcome (a decisive victory for the tenant) we need to understand how our law views the whole question of “self-help law”.
Taking the law into your own hands
It has long been a fundamental principle of our law that “no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the Court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute.”
In other words, no matter how strong your case against your tenant may be, a court will without further ado order you (in the form of a “spoliation order”) to allow the tenant back in. The court won’t enquire into whether the tenant’s occupation is wrongful or illegal, nor will it enquire into your respective legal rights. Those enquiries only come later, when you comply with the law by bringing a proper eviction application before the court.
To succeed in obtaining a spoliation order, your tenant needs to prove only two things –
- That he/she was “in peaceful and undisturbed possession of the disputed premises” and
- That he/she was “deprived of that possession without consent or recourse to law”.
If these two requirements are proved, possession is restored without any enquiry being made into the legal rights of the parties to possession.
Tenant 1, Landlord 0
The Court, after having made a finding on the facts that the tenant and his sub-tenants had been in physical possession of the premises prior to being locked out, ordered the landlord to immediately restore access and possession to them. The Court also held that the landlord was required to pay the tenants’ legal costs, so it’s back to square one, and with somewhat lighter pockets.
What should the landlord have done?
The landlord should have proceeded with eviction proceedings in accordance with the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (generally referred to as the “PIE Act”) where the landlord could have secured a legal eviction of the tenants.
The landlord could have also sued the tenant for any arrear rental or damages which the leased premises sustained as a result of the tenant’s conduct.
Lessons for landlords
Prevention being, as ever, much better than cure, make sure up front that your tenant is good, trustworthy and creditworthy. Check with your lawyer that your lease is water-tight. Take sureties if you can. Insist on holding a reasonable deposit. Treat good tenants like gold, even if it means giving them a bit of rent relief.
Most importantly, if and when your tenant falls into arrears or otherwise seriously breaches the lease, seek legal assistance without delay!