November 9, 2016
“I’ll answer him by law” (Shakespeare)
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 the lease, to slap the biggest and strongest padlock you can find onto the front door/driveway gate.
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, perhaps even a damages claim.
A recent High Court case 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 (presumably for rental arrears), and
- Sub-let a portion to some 150 people as accommodation without the landlord’s permission
- The landlord put a lock on the entrance gate to deny access to the tenant and his sub-tenants
- The tenant immediately approached the Court for 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. It 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”
Tenant 1, Landlord 0
After finding on the facts that the tenant and his sub-tenants had been in physical possession of the premises prior to being locked out, the Court ordered the landlord to immediately restore access and possession to them. The landlord must also pay the tenants’ legal costs, so it’s back to square one, and with somewhat lighter pockets.
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!