Disconnecting the electrical supply amounts to “spoliation”
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A case came before the High Court in the Western Cape recently that dealt with the eviction equivalent of “constructive dismissal”. Electricity supply was turned off to a couple’s home, in a clear attempt to remove them from the property by making it uninhabitable. The case was complicated (this was in fact an appeal against an earlier ruling, which was upheld) and the legal particulars of it of little interest to anyone but other lawyers, but it flagged some very important issues in the landlord/tenant contract, and the case inspired us to remind you of your rights and responsibilities as a landlord.
Makeshift 1190 (Pty) Ltd v Cilliers
This case concerns an appeal of an earlier order for spoliatory relief. The word “spoliation” has the same linguistic root as the world “spoil”, and shares its meaning (“the action of ruining or destroying something”) but is little used outside of the legal context. It crops up a lot in eviction cases, and refers to the wrongful deprivation of another’s right of possession. Spoliation can occur not only through physical eviction from premises, but by rendering the premises uninhabitable. In the case of Makeshift Ltd v Cilliers, it appears that a family rift led to the father, Martinus, who inhabited the farmhouse on the family farm, cutting off the electricity supply to one of his sons and his wife (Tom and Colleen), who occupied an outbuilding on the farm, called “the store”.
Martinus disconnected the Eskom supply when he installed a solar power generating system and no longer required electricity from the grid. However, the solar power did not supply the store, and Tom and Colleen were dependent on the Eskom supply. Furthermore, they paid all the electricity bills. When the power was cut off, Tom was away working and Colleen, alone on the property and nervous about her safety with no illumination around the building, applied for an urgent spoliation order in the Magistrate’s Court, which was granted. The case then becomes very complex and beyond the purpose of this article. You can read the full story here.
However, the outcome of the case is that the electricity supply to the store could not be denied without a court order. According to the magistrate’s decision, “the right to electricity is not ‘purely’ personal but ‘an incident of the possession or control of the property’ served by the supply of electricity…[and] the claimant’s occupation of the premises, and his or her use of its electrical appurtenances, constitute the possession of the premises and the quasi-possession of the alleged right to electricity as an incident of his or her possession of the premises.”
In plain English…
In other words, cutting off the electricity supply rendered the premises unusable – it was an act of spoliation as defined above. The take-home message is: landlords may not do this!
What rights does a landlord have?
Rental housing legislation is premised on a fair right of occupation of a property and is strongly biased in favour of tenants’ rights. This is to redress the balance of historical wrongs, when tenants were often summarily deprived of their homes without warning. But it does not mean that landlords don’t have rights. The law also recognises the right of a property owner to the enjoyment of that property, and provides recourse to landlords whose tenants are in breach of the lease agreement.
Here’s a reminder of what a landlord can and cannot do, in the event of troublesome tenants.
You may not:
Change the locks
Disconnect water, electricity or gas
Remove the tenant’s possessions
Physically remove the tenant
Evict a tenant without a court order
You may:
Serve notice on the tenant to remedy a breach of the lease agreement
Terminate the lease agreement if the breach is not remedied in the time given
Serve notice on the tenant of your intention to seek an eviction order through the courts
Apply to the court to have a tenant eviction order issued to the tenant
Thereafter, the matter is in the hands of the court. Only a Sheriff can evict a tenant. The tenant eviction process takes time, but if you can prove, among other things, that imminent harm will be caused by your tenant if they remain on the property for the duration, then an Urgent Eviction may be available to you. Eviction Lawyers South Africa can help you secure the necessary legal consent.
Leases, leases
Remember, it will soon be a legal requirement to have a written lease. Currently, verbal lease agreements are legally binding, but the as yet un-gazetted Rental Housing Amendment Act 35 of 2014 requires landlords to have a written lease agreement in place. We can help you draft both residential and commercial leases.
Don’t forget about lockdown
One final reminder: you cannot evict a tenant under the current lockdown level 3. You may begin proceedings in the courts, but a Sheriff will not remove a tenant until the government advises that evictions may begin again. We assume this will be under level 2, but no announcement has yet been made.
For further information
We are a Cape Town law firm specialising in eviction, also operating in Johannesburg and Durban. We act for both landlords and tenants and uphold the rights of each to a fair and satisfactory tenancy. If you have concerns about your tenancy or your tenants, contact Simon at Cape Town Eviction Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za.