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30 Oct 2023

A Costly Case of Buyer’s Remorse

Buying or selling property is a big deal for most of us, and no one wants to be in the position of a couple who, having viewed a house advertised as “a renovator’s dream”, signed an offer to purchase immediately but then changed their minds.

Too late! The seller had already accepted the offer, creating a binding sale agreement. The buyers’ breach left them liable to pay the agents their commission – a costly mistake which they could easily have avoided. We discuss, with a focus on the High Court’s application of the old “let the signer beware” maxim.

“Caveat subscriptor” – old legal maxim meaning “Let the signer beware!’

A recent High Court decision once again highlights the dangers of signing anything without reading, understanding and fully considering it.

A “Renovator’s Dream” and a case of buyer’s remorse

  • A couple viewed a house advertised as “a renovator’s dream” and they immediately decided to sign an offer to purchase for R550,000 (R20,000 under asking price).
  • The seller accepted the offer that afternoon (after the agent agreed to reduce her commission to R40,000) and the agent emailed a copy of the sale agreement to the buyers with confirmation of the acceptance.
  • Early the next morning the buyers emailed the agent saying that the cost of renovations meant the purchase was not feasible for them “Therefore I hereby decline my offer to purchase and thanks for your time.”
  • After taking legal advice the agent confirmed that a binding sale agreement had been concluded and that the sale must proceed.
  • The buyers’ response was to suggest that the sale was subject to their daughter’s approval, to which the agent countered that had that been discussed, a special condition to that effect would have been inserted into the agreement.
  • The seller thereafter sold the house to another buyer, and the agent (having not been involved in the second sale) sued the buyers for the agreed commission of R40,000 in terms of a standard clause in the sale agreement making the buyer liable for commission on breach by the buyer.

“Let the signer beware!”

  • The Court dismissed the buyers’ objection that they hadn’t realised that they would be liable to pay the commission if they breached the sale agreement. “It is evident”, held the Court, “that the caveat subscriptor [‘let the signer beware’] rule provides that a person who signs a contract signifies their assent to the contents of the document, and they are bound by the document even if it subsequently turns out that the terms are not to their liking. In that event, they have no one to blame but themselves.” In other words, read and understand any agreement before you sign it – once you sign, you are bound whether you read it or not.
  • Nor could the buyers prove that the sale was subject to their daughter’s approval as there was no condition in the agreement to that effect. In other words, make sure that any special conditions you want to form part of the sale are inserted into the signed agreement.
  • Finally, there was no evidence of misrepresentation or fraud inducing the buyers to sign – if they were mistaken as to what was in the agreement and in particular in the commission clause, that was due to their failure to read it before signing.
  • The buyers must pay the R40,000 commission plus two sets of legal costs.

Bottom line – sign nothing without understanding exactly what you are agreeing to.

24 Oct 2023

Occupancy Certificates and their Importance in Property Transactions

When it comes to buying or selling immovable property, there are various legal intricacies that need to be considered to ensure a smooth transaction. One of the most important documents that both buyers and sellers should be aware of is the occupancy certificate.

An occupancy certificate is a legal document that certifies that a building (as defined, this means basically any improvement to an erf which requires building plans) has been constructed according to the approved building plans and complies with all the necessary building regulations and by-laws. This certificate is issued by the local authority or municipality and is required for all improvements, including residential and commercial properties.

It is important to note that an occupancy certificate is required before occupying (or using) any such improvements.

To obtain an occupancy certificate, a building inspector must inspect the “building” (as defined) and confirm that it meets all the necessary requirements. Once the building has been certified, the certificate is issued to the owner of the property.

If there are any changes or alterations made to the building after the certificate has been issued, a new inspection may be required to ensure that the building still complies with the regulations and standards.

The sale of immovable property

Oddly enough, it is not a requirement in law in South Africa, that a seller must be able to produce an occupancy certificate before a property may be transferred. But undertaking improvements and then not obtaining one is an offence.

How they may affect the registration of mortgage bonds

We have noted a marked increase in bonds being approved on condition that an occupancy certificate and approved building plans are obtained.

If the seller does not have an occupancy certificate, then the seller needs to obtain one in order to satisfy the bank’s bond requirements. However, the question that then arises, is who must pay for this? The answer is – the purchaser – because it is after all, a bond condition. To obtain an occupancy certificate can cost thousands of rands. However, if the seller had undertaken in the offer to purchase to provide one, then the seller is of course liable for the costs. This can cause delays in the transaction and may even result in the buyer losing out on the property if they are unable to obtain the certificate within the required timeframe, or at all.

03 Oct 2023

Can a Video Call be a Valid Will?

Of course, we all want our loved ones to be looked after when we are gone, and we all know the importance of leaving behind a valid and properly drawn will to ensure that our last wishes are honoured.

But knowledge and action are different things, and our courts must regularly sort out bitter family fights resulting from people not prioritising this vital duty while they can. We illustrate with a discussion around two tragic cases, one involving a father leaving instructions for a new will in a video call but dying of Covid-19 before he could sign it.

“Death is not the end. There remains the litigation over the estate.” (Ambrose Bierce)

It may well be that in the future, we will be able to make a perfectly valid will (“Last Will and Testament”) by way of a video recording or other electronic means, but that day has not yet arrived.

For now, it is essential that your will be properly drawn, not only to clearly reflect your last wishes, but also to comply with all the formalities laid out in our Wills Act.

In summary (ask your lawyer to explain the finer points, they are important), wills must be in writing and signed by you on all pages, in the presence at the same time of two competent witnesses who must sign the end page (preferably all pages, but that’s not a formal requirement). Note that neither witnesses nor their spouses can inherit or be appointed as executor, trustee or guardian.

Video wills – are they valid?

Bearing in mind those required formalities, and the fact that an attempt to rely on a video recording as a will was abandoned in the case discussed below, it would be rash to assume that a “video will” ever be accepted as valid even though the concept has not to date been directly tested in our courts.

Rather observe all the formalities listed above, and think of using a video recording just as an adjunct to your formal will. For example, recording the will-signing process itself could help avoid any future dispute over your written will’s validity, whilst an informal video message to your family explaining to them why you have drawn your will the way you have could provide clarity and comfort to them when the time comes.

Non-compliance with formalities – there are “escape hatches”, but …

There are “escape hatches” in that our Wills Act provides that a document not complying with all formalities can be accepted as a valid will if it was drafted or executed by the deceased and if it was intended to be their will. You can also be authorised to both inherit and act as an executor, even if you or your spouse signed as a witness, if you can prove that there was no fraud or undue influence over the deceased. You can also be taken to have revoked a previous will in various ways.

But as we shall see from the two recent High Court cases discussed below, relying on any of those escape hatches is extremely unwise. At worst, your last wishes won’t be honoured, and at best you will be exposing your loved ones to the risk of prolonged and bitter litigation at the very worst time.

Case 1: A Covid-19 video-call attempt to replace a will fails

  • A father had left everything to his children in a 2018 will. But, dying in hospital of Covid-19 in 2021, he made a video call to his farm manager indicating his wish to revoke the will and saying that his final instructions were that everything be left to his farming trust.
  • As requested, the farm manager had a will to that effect drawn by attorneys and delivered it to the hospital (he was unable to deliver it personally due to Covid-19 restrictions then in place), but the father died before it could be given to him for confirmation and signature.
  • The trust asked the High Court for an order declaring the 2018 will revoked and the 2021 unsigned will accepted as valid (it seems to have abandoned an argument that the video call itself was a will). The disinherited children opposed this application vigorously.
  • The Court declined to validate the unsigned 2021 document, pointing out that the Wills Act’s provisions in this regard must be interpreted and applied strictly and narrowly. It’s analysis of the trust’s argument that the “impossibility principle” applied will be of great interest to lawyers, but the practical point of issue to most of us is that although it seems clear that the father wanted to make a whole new will, on the facts of this case only his written and signed 2018 will could be accepted as valid.

Case 2: Brothers at war, and a non-compliant will accepted as valid

  • Another tragic case of a dying father trying to change his will, this time to disinherit one son (“JP”) in favour of the other (“SG”).
  • The new will did not comply with the Wills Act’s formalities. Three witnesses signed it but not in each other’s presence, whilst the fact that one of the witnesses was SG’s wife formally disqualified him from inheriting or acting as executor.
  • JP asked the Court to declare the will invalid so he could inherit under the laws of intestacy, whilst SG asked the Court to accept the will despite the non-compliance, and to allow him to inherit and to act as executor.
  • On the particular facts of this case, including undisputed evidence of a major rift between JP and his father (in contrast to an extremely close relationship between SG and the father), the Court exercised its discretion in favour of SG.
  • Firstly, it held that the will, despite the failure to comply with formalities, was indeed drawn by the father and intended by him to be his will. It was therefore accepted as valid.
  • Secondly, it held that SG could both inherit and act as executor because he had proved a lack of fraud or undue influence over his father.

Different outcomes but a clear principle – failure to comply with all formalities risks your last wishes not being implemented and exposes your loved ones to dispute and litigation.

03 Oct 2023

Suing for a Supermarket “Slip ‘n Trip” – What Must You Prove?

Supermarkets, for all their many advantages, must be navigated with care – spillages, slippery floors, boxes in the aisles and goods fallen from shelves are just some of the perils that await the unwary.

If you are unfortunate enough to fall victim, you will want to claim damages, but what exactly must you prove to succeed? We address that question with reference to a recent “slip ‘n trip” case before the High Court, in which a shopper slipped on a spillage that seems to have been a very small one, but with serious results.

“The path is smooth that leadeth on to danger” (William Shakespeare)

Tripping over aisle blockages or slipping on floors made slick by spillages can happen in even the best-managed supermarkets, and injured shoppers regularly turn to our courts to claim damages from shopkeepers and building owners.

It’s no surprise therefore that this sort of claim has its own (informal) name – the “slip ‘n trip” case. A recent High Court judgment provides some clarity on what you will need to prove should you be one of the unfortunate shoppers who are injured in this way.

A shopper slips, and sues

  • A shopper slipped on an unidentified spillage, injuring herself and needing hospitalisation and further treatment for unspecified orthopaedic injuries.
  • Supermarket employees initially undertook to cover her medical expenses but later the supermarket denied liability.
  • It admitted that it had a “general duty of care to customers visiting its store to ensure that it afforded them a safe environment within in which to shop”, but claimed the shopper’s fall was “due to her sole negligence in that she failed to keep a proper lookout, failed to take reasonable steps to prevent her fall and failed to avoid injury to herself.” In the alternative it alleged contributory negligence on her part. It also sought to blame its cleaning service contractors and/or an independent merchandiser who had been working in the aisle in question.
  • The shopper took her claim for damages to the High Court, which confirmed that what you will have to prove is that the shop –

    – Should have foreseen the reasonable possibility of its conduct causing your injury and monetary loss; and
    – Should have taken reasonable steps to avoid that loss; and
    – Didn’t do so.

  • The Court held that, on the evidence presented, the shopper had proved that “she took proper care for her own safety on the morning in question. The fact that she may have moved down aisle 5 at more than a leisurely dawdle did not occasion her fall: she did not slip or trip because of haste or inattention but because she stepped in some spillage of unknown origin.” (i.e., you need to prove you weren’t negligent)

  • And even if the spillage was a small one (supposedly the size of a R2 coin in this case) “it really matters not what the extent thereof was as its mere presence on the supermarket floor presented a risk to any unassuming shopper, who would be expected to spend her morning looking at the merchandise on the shelves and not peering down at the floor ahead of her.” (i.e., keeping a proper lookout doesn’t necessarily mean peering down at the floor ahead of you all the time)

  • In principle, once a shopper has “testified to the circumstances in which he fell, and the apparent cause of the fall, and has shown that he was taking proper care for his own safety, he has ordinarily done as much as it is possible to do to prove that the cause of the fall was negligence on the part of the [supermarket] who, as a matter of law, has the duty to take reasonable steps to keep his premises reasonably safe at all times when members of the public may be using them.”
  • The shopper in this case had done all that, raising a rebuttable presumption of negligence by the supermarket so that, in the absence of an explanation from it, it was inferred that a negligent failure on its part to perform its duty must have been the cause of the fall. In this case it provided no evidence of how long the spillage had been on the floor or how long it was reasonably necessary for it to discover the spillage and clean it up. (i.e., once you prove what happened and that you took proper care for your own safety, it’s for the supermarket to prove that it wasn’t negligent)

  • The shopper is entitled to whatever level of damages she can prove.
03 Oct 2023

Dementia: Understanding Your Legal Options

All of us are likely at some stage of our lives to have to address the challenges of a family member suffering from dementia. What can you do to help and protect them when they lose the mental capacity to handle their own legal and financial affairs?
After sinking the myth of the “power of attorney is forever” option, we set out three legal alternatives available to you, with notes on when they are available and the merits of each. Understanding these options will go a long way to helping you (and your family) navigate this difficult journey.

“Dementia is the plague of our time, the disease of the century” (Unattributed)

Dementia is a widespread medical condition that affects people of all ages but particularly the elderly and includes conditions like Alzheimer’s. One of the most significant challenges of dementia is the loss of mental capacity, making it difficult for individuals to make crucial decisions, including those related to their legal affairs, finances and care. This can be particularly problematic when family members are unprepared or unaware of the practical and legal implications.

Beware the Power of Attorney myth

One common misconception is that a signed Power of Attorney (PoA) can authorise a family member to take control of the individual’s financial affairs in perpetuity. In fact, a PoA is only valid as long as the person who granted it maintains “legal capacity”, in other words an understanding of its implications. If and when dementia kicks in, the PoA automatically becomes invalid.

Enduring Powers of Attorney, which continue even after someone loses legal capacity, are valid in some countries but are unfortunately not yet recognised in South Africa.

So, what are your legal alternatives for dealing with dementia?

You will typically have three legal options available –

  1. Curatorship: This involves appointing a curator bonis through a High Court order to manage the financial affairs of the person with dementia (a curator ad personam may in rare cases also be needed to manage the person’s personal affairs). This process can be complex and expensive, but in some cases, it may be the only viable option available.
  2. Administration: Similar to curatorship but less complex, less expensive, and quicker, this involves an application to the Master of the High Court for the appointment of an Administrator.

    It is only available when your family member is a “mentally ill person or person with severe or profound intellectual disability”, which excludes cases of purely physical frailty or disability, and suggests that in cases of mild dementia or mild cognitive impairment only curatorship is an option – but take legal advice on your specific circumstances. An extra element of cost and delay applies in larger estates, in that the Master must commission an investigation into any application where the assets involved are over R200,000 and the annual income is over R24,000 p.a.

  3. Special Trust: An alternative option is to consider a trust or special trust, which can be established if your family member suffers from an early onset of dementia but is still lucid and has legal capacity. All trusts have advantages in that they allow individuals the freedom to choose upfront who the trustees will be and what powers and duties they will have, whilst special trusts come with significant tax benefits over ordinary trusts. Individualised professional advice is essential here.

Understanding the available legal avenues can help you navigate this difficult journey, and with proper planning, personalised legal advice and early action, you can ensure that your family member’s legal and financial well-being is protected at all times.

03 Oct 2023

Security Warning: Property Sale Cybercrime Surges, and a New AI Danger

October is Cyber Security Awareness Month, a good time to focus on the fact that cybercriminals are targeting more and more property transactions.

If you are selling or buying property, keep your guard up! In the context of yet another High Court dispute over who will bear the loss of a substantial amount of money paid by a buyer into a fraudster’s bank account, we discuss the risks and share some tips on how to minimise them. Lastly, there’s a warning about a new and significant AI danger which is bound to catch many victims unawares – don’t be one of them!

“The infectiousness of crime is like that of the plague” (Napoleon Bonaparte)

This October marks the 20th anniversary of the globally observed “Cyber Security Awareness Month”, and with cybercrime continuing to surge, here’s a cautionary tale to bear in mind.

You buy your dream house and pay the purchase price to the transferring attorneys (the conveyancers). Excitement builds as you wait eagerly for transfer and call the family together to plan your move. Then comes a call from the attorneys – why haven’t you paid yet? Your heart sinks, and panic sets in as it becomes clear that you just paid into a fraudster’s bank account. You contact the bank but your money has gone, along with the fraudsters.

That’s a nightmare scenario to which an ever-increasing number of property buyers and sellers around the world are being subjected. Property transactions are a natural focus for these cybercriminals because of the large amounts involved, but more and more personal and commercial transactions are also being targeted.

A recent High Court fight over yet another email interception fraud reinforces the need to remain alert in every situation and at all times…

R2.94m stolen – buyers, banks and conveyancers all at risk from email interception fraud

  • A couple bought a house and paid R2.94m into the bank account specified in an email which appeared to come from the conveyancers. It was however a classic case of “email interception and compromise” – somehow the criminals had obtained sufficient information about the sale transaction to enable them to email the buyers, pretending to be the conveyancing firm, and convince them that their payment was being made into a legitimate trust account.
  • As soon as it emerged that the account was in fact a fraudster’s, the buyers contacted the bank which promised to immediately freeze the account. Nevertheless, the R2.94m was transferred out to the fraudsters, and the couple sued the bank in the High Court for negligently allowing that to happen.
  • The bank replied that, if it were indeed found to be negligent, it would allege contributory negligence on the part of both the buyers and the conveyancers.
  • Its application to “join” the conveyancers into the court action failed, the Court holding that the buyers could choose who to sue and who not to, but the practical point of interest to most of us is the clear indication that in a case such as this, everyone stands to lose – property buyers (sellers are equally at risk), banks and conveyancers.

How to stay safe

“Forewarned is forearmed”, so follow these procedures strictly –

  • Never fully trust anything you access or receive electronically. Everything electronic is potentially unsafe – think emails, SMSs, WhatsApp messages, websites, social media pages, online forms and anything similar. Don’t click on links without checking first for suspicious URLs and even then, be careful if asked to submit information, don’t download attachments unless you are certain they are safe, never disclose login details, passwords or other sensitive or personal information. Keep reminding yourself, your family and your staff of the ever-present dangers.
  • Secure all your email, network and online systems against viruses, malware, breaches, hacking and compromise. Make sure all devices, servers, domains etc are protected. A good start is to install strong anti-malware software and firewalls, to ensure that all software and browsers are constantly updated with the latest security patches, and to use data encryption where you can. Use strong passwords and change them regularly.
  • Use an online resource like the South African Fraud Prevention Service’s YIMA to security check websites. Download the U.S. Cybersecurity and Infrastructure Security Agency’s “Tip Cards” on its “Stop.Think.Connect. Toolkit” webpage.
  • Pay particular attention to all banking and investing channels, and under no circumstances trust any email, SMS or other communication purporting to advise banking details or (a particular risk area) a change of banking details.
  • If you are a business that regularly requests payments from customers or clients, add a suitable warning to every communication and a disclaimer against liability if a loss occurs (legal advice specific to your circumstances is essential here). Consider using a secure payment portal with 2FA (2 factor authentication) protection. If you email invoices with banking details, secure them from alteration (don’t put all your faith in PDFs, it’s a myth that they can’t be changed).
  • Perhaps most importantly – always check directly with the account holder before paying anything. Contact the account holder only on its real and confirmed contact details – fraudsters are adept at creating look-alike emails and email addresses, telephone numbers, WhatsApp and cell numbers, and website addresses. Which brings us to …

A new and substantial danger – AI voice cloning

As AI explodes into every aspect of our lives, an increasing number of reports are made of “voice cloning” frauds.

Perhaps you get a call from “your attorney”, or your attorney gets a call from “you”. Or your “boss” or your “HR department” phone you. Perhaps the call is to ask for sensitive information or perhaps it is to ask for money. A particularly successful fraud here, because of its emotional content, could be a variation on “Hi Mum and Dad, I have a problem, can you send me R10k urgently please? Send it to…”.

You know the voice so you trust the call, but the reality of course is that a criminal has fed a sample of someone’s voice into an AI program and duplicated it perfectly (or at least perfectly enough to fool you in the heat of the moment). No doubt cloned video calls and other AI powered scams will proliferate soon if they aren’t already doing so.

Once again, constant awareness is the key to protecting yourself from this sort of scam. Never let your guard down!

19 Sep 2023

Making the most of your Home Loan – What is an access bond and how does it work?

An access bond allows you to pay any extra funds that you have, into your home loan account. Bear in mind that your monthly bond repayment consists of amongst other things, the capital amount that you borrowed, and an interest component. If you then pay in more than you actually need to, this is credited to the capital amount. This means that the interest will be slightly less, the next month. You will also have access to this additional amount because you have paid it in advance.

An access bond offers a tax-free savings opportunity by allowing you to effectively save money and at the same time, save interest on the loan!

This facility is either included in your home loan when your finance application is approved, or you can apply at your bank once your bond has been registered.

There are two different ways to set up your access bond:

The first is the default facility where your monthly instalment (capital and interest) stays the same each month, regardless of any extra amounts you pay in, and your home loan term will then decrease according to the extra funds you pay.

The second and alternative option is for the debit order amount to be adjusted, to take into account the reduced capital owing, which determines the amount of interest that is payable. If you want to pay off the bond sooner, the first option is then the better one.

It is important to note however that if you do build up a credit in your home loan (being the access facility we are discussing), then, once you do decide to access this credit and you draw money from the home loan account, then the interest repayment will of course increase again because now your home loan will be more than it was the previous month. But, that said, this is a far cheaper way of “borrowing” money than a short-term loan, where the interest rates are far higher than with a home loan.

The advantages of the access bond facility are therefore unlimited deposits, convenience, you save interest on your home loan, all at no additional fees. All of this whilst at the same time, your home appreciates in value.

13 Sep 2023

FOLLOW UP ON RECENT PROPERTY CONDITION REPORT NEWSFLASH (MANDATORY DISCLOSURES)

We have received a number of questions, in response to our last post. Please familiarise yourselves with the Act once again. We have highlighted the vital parts:

Section 67 of the Act states the following:

(1) A property practitioner must —

(a) not accept a mandate unless the seller or lessor of the property has provided him or her with a fully completed and signed mandatory disclosure on the prescribed form; and

(b) provide a copy of the completed mandatory disclosure form to a prospective purchaser or lessee who intends to make an offer for the purchase or lease of a property.

(2) The completed mandatory disclosure form signed by all relevant parties must be attached to any agreement for the sale or lease of a
property, and forms an integral part of that agreement, but if such a disclosure form was not completed, signed or attached, the agreement must be interpreted as if no defects or deficiencies of the property were disclosed to the purchaser.

To therefore answer the questions, we have received (and applying the PPRA’s communication):

May an agent complete this on the seller’s/landlord’s behalf?

Yes. But the SELLER/LANDLORD must still sign it off. It is a declaration by him/her, not the agent.

Is there no way around this at all?

You could apply for exemption under Section 4 of the Act, but this is not practical at all as it would have to be for each and every such occasion.

May we amend the prescribed Mandatory Disclosure at all?

No. It must be used in its prescribed form. Do not change anything.

13 Sep 2023

PROPERTY CONDITION REPORTS – IS IT AT ALL “NEGOTIABLE”?

Since inception of the Property Practitioners’ Act, Property Practitioners have sought a solution to the following scenario:

You have an executor/curator/investment seller, who has no knowledge of the property’s condition at all, and who refuses to sign a property condition report. What now?

In the light of the history of this document (which was, to our knowledge, introduced by the former EAAB in order to protect agents against claims of non-disclosure), we have interpreted the Act to mean that if you are faced with a seller who is not willing to sign, for the above reasons, you could possibly use an addendum to address this, and still protect yourself.

Please note, we received correspondence from the PPRA yesterday, that in their view, the Property Condition Report serves to protect the consumer. Secondly, they also confirmed that Property Practitioners who do not comply, face the risk of disciplinary sanction without exception.

As such, and to finally answer the question that has been raised: If your seller does not want to sign off on the condition report, you may not market the property.

In the PPRA’s defence, sellers must simply be made aware of the fact, that these reports do not bind the seller in any manner at all. It is a declaration made to the best of the seller’s knowledge and belief. It does not amount to a warranty of any kind.

We therefore advise all Property Practitioners to turn down any mandates where the seller refuses to complete and sign such a report, with immediate effect. If you have a pending mandate, but no completed report, get one right away, or you will be forced to terminate the mandate.

There are no exceptions, it seems.

30 Aug 2023

Landlords: You Cannot Cut a Defaulting Tenant’s Water and Electricity

Your tenants stop paying rental, but stubbornly refuse to vacate whilst you must keep on shelling out for bond instalments, rates, repairs and municipal services. The temptation grows – cut off their electricity and water, stop them freeloading off you, get them out so you can re-let to better tenants.

A recent High Court decision demonstrates once again why taking the law into your own hands like that is playing with fire. We’ll end with a note on why your lease should always be in writing, clear and comprehensive.

“A fundamental principle in issue here is that nobody may take the law into their own hands. In order to preserve order and peace in society the court will summarily grant an order for restoration of the status quo where such deprivation has occurred, and it will do so without going into the merits of the dispute.” (Excerpt from judgment below)

Many a landlord is tempted to go the “self-help” route when non-paying tenants refuse to pay up and also refuse to leave. Holding costs mount with not a cent in rental income to show for it, the landlord gets desperate and locks are changed, access codes blocked, electricity and water cut off.

But what if, instead of meekly packing up and vacating, the tenant rushes off to court? As we shall see from our discussion of a recent High Court decision below, now the landlord has a real problem, regardless of whether or not the tenant has lost its legal right of occupation.

You cannot take the law into your own hands

  • A tenant under a verbal lease dating back some 27 years, and in terms of which the rental included payment for water and electricity, stopped paying rental in January 2021.
  • The landlord, citing both failure to pay rental and allegations of unlawful sub-letting and overcrowding, gave the tenant notice of eviction. The tenant refused to vacate, and had her attorney warn the landlord against evicting or cutting services without a court order.
  • When the landlord nevertheless went ahead and cut the electricity and water supplies, claiming this to be a lawful attempt to reduce its losses since the (unpaid) rental included the supply of electricity and water, the tenant asked the High Court to (among other things) grant it a “spoliation order” (an order giving possession back to someone deprived of it without due legal process) restoring services immediately to the premises.
  • The case didn’t go well for the landlord, and it is now back to square one after eighteen months of no rental income, with the added costs of two sets of legal bills to pay. Landlords, said the Court, must pursue the remedies at their disposal to enforce payment of rental in accordance with the law. “Landlords are not entitled to take the law into their own hands.”
  • A vitally important factor to bear in mind here is that at this stage of proceedings a court will not enquire into whether or not the tenant has a legal right to be in possession: “Irrespective of the lawfulness or otherwise of the occupation, a landlord may not disconnect water and electricity without the intervention of a court.” (Emphasis supplied).
  • Relevant to the Court’s decision was the fact that on the facts of this case, supply of services was not a “personal right” between the parties but part of the tenant’s possession of the property: “To my mind, the supply of electricity and water is not merely contractual, but an incident of the possession of the property.” That can be a fine distinction, so specific legal advice is essential if you are a landlord (or a tenant) embroiled in a dispute of this nature.
  • The end result – the landlord was ordered to restore electricity and water immediately to the tenant and must pay the tenant’s legal costs.

Lessons for landlords

  1. You are playing with fire if you take matters into your own hands when dealing with problematic tenants. No matter how intransigent they may be and no matter how unlawful their occupation, the only safe route is to follow the appropriate legal channels with specific legal advice and assistance –

    a. All a tenant needs to prove to get a spoliation order against you (with costs) is that they were in “peaceful and undisturbed” possession, and that you unlawfully deprived them of that possession. Nothing more.

    b. And that’s by no means your only risk – you could also be charged criminally in terms of the Rental Housing Act, which provides that anyone who “unlawfully locks out a tenant or shuts off the utilities to the rental housing property” faces a fine and/or two years’ imprisonment.

  2. Secondly, it is clear that one of the landlord’s practical problems in this matter was the fact that (amazingly after 27 years) it had no written lease in place. That made it difficult to prove the terms of the lease, the parties’ rights and duties, duration, grounds for termination, and notice periods. Although a verbal lease is valid in law (for now anyway; change is in the wind on that one), a properly drawn written lease is vital to protect your rights!

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