Owners of a rental property may be frustrated when dealing with poor-paying tenants, but do they have the right to cut off electricity to the property – legal expert Nicolene Schoeman-Louw from SchoemanLaw Inc has provided insight into this legal conundrum.<\/p>\n
Poor-paying tenants directly affect the bond repayments of an owner while municipal charges continue to mount. The founder of the law firm said it is often a consideration to cut electricity or water to the property – with<\/p>\n
The case of Wilrus Trading v Dey Street Properties<\/em> dealt with this legal question, she said.<\/p>\n Facts<\/strong><\/p>\n Two tenants conducted their business from the premises of a property on Dey Street – owned by Dey Street Properties. They launched a court process against the managing agents and the metering service provider when their access to water and electricity was cut.<\/p>\n They asked after the following orders:<\/p>\n The tenants further relied on a decision in another case called\u00a0Eskom v Masinda<\/em>. In the Eskom case, the court considered whether the electricity supply in itself was an incident of possession of the property to which it is delivered or a mere personal right, said Schoeman.<\/p>\n “This is important as a spoliation – loss of property – application fundamentally requires satisfying being or having been in possession.”<\/p>\n Additional case law confirmed the following factors of consideration:<\/p>\n Ruling<\/strong><\/p>\n Where a landlord has cut off electricity to force the claimants to vacate the property, the court has held that it was in the claimants’ possession of the property, said Schoeman.<\/p>\n According to Schoeman-Louw, the court held that the supply of electricity (at the instance of the first respondent) constituted material interference in the possession of the property itself.<\/p>\n Further, it held that it was difficult not to conclude that interference to the electricity supply materially interferes with the tenant’s possession of the property, said the legal expert.<\/p>\n The landlord argued that the tenant’s lease agreements had been cancelled despite the tenant remaining in occupation. The court found that this fact, coupled with the purposive cut to electricity to force the applicants to vacate and avoid having to follow due process to recover alleged arrears.<\/p>\n Schoeman said that it is essential that tenants are informed of their non-payment or poor performance, and despite many municipalities having by-laws that provide for the disconnection of utilities – it is best to give notice of intention to do so and not take the law into your own hands<\/strong>.<\/p>\n\n
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