Written for Property Poser

The Property Poser panel has received a query from a reader who arranged a late payment of her monthly rental with the agent concerned but then found that her prepaid electricity card had been blocked.

Unable to purchase electricity, she has approached the experts for advice.

According to Stiaan Jonker of Smith Tabata Attorneys in Port Elizabeth, the Rental Housing Act declares it an unfair practice for a landlord to unlawfully shut off the utilities to a rental property.

“The regulations provide that a tenant may lodge a complaint with the Rental Housing Tribunal on an urgent basis for spoliation or an interdict.”

Jonker says the landlord may not interrupt the supply of services to the tenant’s dwelling without ensuring that all the legal requirements in terms of the Rental Housing Act and the provincial Unfair Practices Regulations have been complied with.

“A landlord failing to comply with these regulations may be liable for the payment of a fine or imprisonment if found guilty.”

When a person owns or uses something – in this instance the municipal services – which is then taken away from them without due process having been followed, he or she can apply for a spoliation order for its restoration, says Jonker.

“The investigation doesn’t take into account whether the previous user or owner had lawful rights to the item or service, simply whether he or she was in peaceful and undisturbed possession thereof before it was taken away from him.”

Jonker says the merits of the matter would be investigated at a later stage should the parties take the matter further.

“In the current situation, an appropriate remedy for our reader to pursue is to approach the tribunal for urgent relief.”

If there is a written lease agreement in place, the landlord should first place the tenant on terms for the non-payment of rental, says Susan Chapman from Rawson Properties PE Platinum.

“The agreement will usually provide the period within which the tenant must remedy his or her breach. If the tenant has requested a payment extension for reasonable reasons, as the reader appears to have done, then the landlord must take this into account before considering legal action.”

Should the tenant still not perform in accordance with the terms put to him or her, the landlord may then choose to cancel the agreement or evict the tenant, says Chapman.

“He could even possibly sue for damages, such as arrear and possibly even future rental.”

Even if no written agreement is in place, it does not mean that the landlord can take matters into his own hands, says Chapman.

“This simply means that no agreed process is laid down for putting a party on terms should he or she fail to perform his or her duties in terms of the oral agreement.”

Chapman says, in such an instance, notice would be required to place the tenant in breach and a reasonable time period allowed within which to perform.

“In this instance, too, the Act provides for the landlord to take steps in recovering the loss following an order from the tribunal or a court of law.”

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