Written for Property Poser

This week’s Property Poser question comes from a reader who is leasing a commercial property.

Her business appears to have hit upon hard times financially and her rental is one month in arrears. She wants to know whether her landlord can lock her out of the property without a court order.

According to Susan Chapman from Rawson Properties Port Elizabeth Platinum, the lease entered into between the tenant and landlord should be examined as a priority.

“The lease generally embodies the provisions agreed upon and should address the landlord’s remedies in the case of the tenant falling into arrears.”

While this may vary from lease to lease, Chapman says it is quite typical for the lease to provide, at the first instance of the lessee being late with a payment, for the landlord to place the tenant on terms.

“The landlord will usually address a notice to the tenant stating that payment is required within an agreed and reasonable period.”

Failure to pay may result in certain remedies becoming available to the landlord, says Chapman.

“The remedies typically available to an aggrieved party are cancellation, with or without the option of claiming damages, or claiming specific performance.”

Chapman says, in the instance of a lease, the retaking of the premises is also provided as a remedy but is generally subject to the aforementioned notice period.

Whether notice was given or not, if the landlord merely took back the property, thereby preventing tenant access, the reader would be entitled to seek legal assistance in having access restored, says Stiaan Jonker of Smith Tabata Attorneys in PE.

“Despite her being in arrears on rental payments, the act of locking out the tenant is unlawful due to her being in peaceful and undisturbed possession of the premises.”

Jonker says the landlord has not been authorised to do so by a competent court by way of a judgment in his favour.

“If the reader finds that she has been locked out, she can seek the granting of a spoliation order from a competent court. This would allow her to resume access to the premises until the landlord follows a process resulting in formal eviction.”

Unless the tenant and landlord have reached an agreement for the vacation of the premises, and presumably with an arrangement in place regarding the arrear rental, the landlord is required to take legal steps on breach, says Jonker.

“This usually involves issuing a summons for the confirmation of the cancellation of the lease, claiming the arrear rental and interest on it, and eviction of the tenant from the premises.”

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