Spoliation is the wrongful deprivation of another’s right of possession. The aim of spoliation is to prevent self-help. It seeks to prevent people from taking the law into their own hands … The cause for possession is irrelevant – that is why a thief is protected… The fact that possession is wrongful or illegal is irrelevant, as that would go to the merits of the dispute” (extracts from a 2012 Supreme Court of Appeal decision)
As a landlord in dispute with your tenant you may well be tempted to avoid the delay and cost of litigation by taking your own eviction or enforcement action.
Bad idea. No matter how good your overall case may be (or how good you may think it is), taking the law into your own hands automatically puts you in the wrong.
Let’s look at how that works, firstly the theory of it and then with reference to a practical example recently decided by the High Court.
The tenant’s right to immediate return of possession
Our law requires that you approach a court for assistance; self-help is not an option. So if you remove the tenant’s access to the leased premises without a court order, you face having to immediately restore possession to the tenant via a “spoliation order”.
The important thing is that at this stage the court has no interest in how strong or weak your actual case against the tenant is. That you can fight about in a full court action down the line. All that counts now is how you dispossessed the tenant, not whether you are the owner nor whether you have any legal right to possession.
So to succeed in obtaining a spoliation order, all the tenant has to prove is –
- That he/she was in “peaceful and undisturbed possession”, and
- That he/she was “unlawfully deprived of that possession.” The critical question here is whether or not the tenant consented – freely and genuinely – to the dispossession. If so, the dispossession was lawful. If not, it was unlawful. Thus spoliation “may take place in numerous unlawful ways. It may be unlawful because it was by force, or by threat of force, or by stealth, deceit or theft” – or just without consent.
Let’s move on to the practical example of the shopping centre tenant …
The internet café and the self-help landlord
- An internet café business owner was locked in dispute with her landlord over its method of electricity billing.
- The landlord’s response was firstly to cut electricity to the premises, then to change the locks.
- After trying without success to resolve the dispute, the tenant applied for a spoliation order.
- The landlord did not dispute that the applicant was in possession of the premises, nor that he had dispossessed her with neither consent nor court order.
- What the landlord did argue was that the tenant’s application was not urgent, that it should have been brought in the magistrate’s court and not in the High Court, and that it was really not about spoliation but about the tenant trying to enforce her rights in terms of the lease.
- Rejecting all these contentions, the Court held that the landlord had committed two separate acts of spoliation –
- The first when it disconnected the electricity supply thus denying the tenant use of the premises – “a limitation of her rights as a possessor” and
- The second when it changed the locks to the premises, thus dispossessing her entirely.
- The end result – the landlord must pay all costs, immediately restore possession of the leased premises to the tenant, and immediately re-connect the electricity.
Landlords – the self-help option automatically puts you in the wrong. Rather go the legal route!