While it might be tempting to lock a tenant out of the property because of non- payment of rent, landlords need to think twice before taking the law into their own hands.

That's the warning from Terry Brookes, chairman of the 210-office National Referral Network (NRN), who in a Cape Town interview, says that since the law strictly prohibits a landlord from seizing a tenant's possessions unless a court order has been obtained, such a course of action could turn out to be extremely costly.

"In terms of the law, landlords are entitled to expect regular rental payments, but unpaid amounts can only be recovered after obtaining a court order," said Brookes.

Brookes says tenants have full legal rights to the rented property. In the event of any breach by the landlord a tenant can apply to the court for a spoliation order that will ensure that the property is restored to him or her. It will also mean that the landlord will be liable for the legal costs, which can be quite substantial.

Property expert Bruce Forrest of Durban conveyancers Meumann White Attorneys, says a spoliation order is a legal edict to return an item or a property, to its lawful possessor, with immediate effect. “The court could also grant an interdict preventing the person who claimed to be the rightful owner from taking the item back until the matter was legally resolved,” he said.

"This is to prevent people from taking the law into their own hands, so it's asking for trouble to cut off a tenant's electricity and water or lock them out without following the correct legal channels."

Landlords who were owed money should start recovery proceedings by having the court issue an ejection and summons, said Forrest, which was served on the tenant by the sheriff of the court. Should the tenant fail to respond to the summons, the court was likely to grant an eviction order to the landlord.

If the tenant contested it, the landlord had the right to request a quick or "summary" judgment from the court, said Forrest. This could also be contested by the tenant.

At this point, the case would go to court, and in the event that the magistrate found in the landlord's favour, the tenant would be issued with an eviction order. But, warned Forrest, despite the eviction order, the landlord could still not force the tenant off the property.

"The landlord would also have to have a warrant of eviction which must be stamped by the court and issued to the tenant by the sheriff of thecourt. That's the point at which a tenant can be forced off the property and his, or her, belongings removed by the sheriff and the police if necessary. The tenant can also be fined by the court if he, or she, fails to co-operate."

It was also at this stage that the landlord could ask the court for an order to attach the tenant's possessions in the event that the tenant owed the landlord money," said Forrest.

Article Supplied by: ProProp