Authors: Annetjie Coetsee
15 November 2021
Tenant not vacating
Frustration and financial losses of a property owner, resulting from a tenant in arrears and who refuses to vacate after the lease was cancelled, have lead many a landlord to change locks or deny access to the leased premises in some or other way.
To add insult to injury, the problematic tenant is then successful in court in an application to restore his access to the premises under the old common law remedy, called mandament van spolie (spoliation).
How is this possible?
It is a fundamental principle of our law that no person may take the law into his or her own hands. In our example, the landlord may not himself dispossess the unruly tenant of the physical possession of property. If one proceeds to dispossess the tenant, the Court will punish this conduct by granting an order to restore the status quo ante (in other words, to restore things to the state they were in before the spoliation). In this context, It is important to remember that the remedy for spoliation is preliminary to any investigation into the merits of the dispute: it provides for interim relief, pending a final determination of the parties’ respective rights. This remedy is therefore merely a factual investigation and considers physical possession, it does not consider the right to possession.
Therefore, irrespective of how strong and justifiable you may think your case may be against another person who causes you harm, do not attempt to remedy the situation yourself. You risk that the unlawful tenant may succeed, be it on an interim basis, with a spoliation application to have the status quo ante restored. Only thereafter will you be able to address the merits of the matter.
In the event that a tenant does not vacate the property after the lease has expired, the tenant is unlawfully occupying the property. The remedy for this is an eviction application to evict the unlawful occupant from the property.
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