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Spoliation And Illegal Eviction

Spoliation is usually the first thing that jumps to mind when a landlord is confronted with a problem tenant or illegal occupant. By resorting to creative, illegal tactics to get rid of the problem, a landlord could be putting an informed tenant in control of the situation by relinquishing his rights in favour of the tenant. The opposing parties switch places, with the tenant now becoming the victim in need of protection in the eyes of the law – often at the expense of the landlord.

 

When is eviction illegal and what are the consequences?

Section 26 of the Constitution states the following: –

Section 26

(1) HOUSING: Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all relevant circumstances. No legislation may permit arbitrary evictions.

 

In terms of the above section, a person may not be evicted without an order of court. A landlord should refrain from unlawfully interfering with the tenant’s use and enjoyment of the property. The landlord who unlawfully disturbs the tenant in the use and enjoyment of the property is guilty of breach of contract. This is called spoliation and occurs when a landlord cuts off the electricity, removes the front door of the property, or locks the premises – to mention just a few. The tenant will be entitled to enforce the contract or, if the breach is serious enough, to cancel the lease agreement. A mandament van spolie may be applied for in order to put the tenant back into undisturbed use of the property and he or she may be entitled to a pro-rata remission of the rent for the time of deprivation.

You won’t be blamed at this point for thinking: why all the fuss about spoliation? Surely if a tenant can’t even pay the rent, what is the likelihood of him being able to afford a High Court application? Well, the truth of the matter is that many attorneys would accept such a matter on a contingency basis (no win – no fee) and possibly even throw in a free consultation. Since the unlawful evictor is likely to end up with most, if not all of the legal bills, they might even brief counsel. Furthermore, in the Rental Housing Amendment Bill (expected to be enacted as soon as early 2015), arbitrary evictions are criminalised. The implications are that, besides a spoliation cost order, a landlord guilty of spoliation could face criminal charges and even a jail sentence.

[Extract from The Landlord’s Guide]

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