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Tenant Not Vacating

The frustration and financial losses suffered by a property owner as a result of a tenant in arrears, who simply refuse to vacate after the lease agreement has been canceled, can leave many a landlord tempted to change locks or deny access to the leased premises in some or other way. However, taking matters into their own hands can leave the landlord vulnerable to further financial damage, and can also result in further delays in getting the unlawful occupier out of the property.

If the landlord were to change the locks or deny the tenant access to the property unlawfully, the delinquent tenant could institute a court application against the landlord to restore his/her access to the premises under the old common law remedy, called mandament van spolie (spoliation).

But how is it possible that the landlord can be punished for merely attempting to take back possession of their own property?

The answer is that, once a landlord and tenant have concluded a lease agreement, the handover of the keys to the property by the landlord to the tenant is what symbolizes handing over uninterrupted use and occupation of the property. To dispossess the tenant of the right to access the property without a valid court order which authorizes the landlord to do so is to unlawfully dispossess the tenant of use and occupation for the property.

Therefore, irrespective of how strong and justifiable your case against the delinquent tenant may be, do not attempt to remedy the situation yourself. By doing so, you risk the possibility that the delinquent tenant may succeed, be it on an interim basis, with a spoliation application to have the property restored to his/her possession. Only after such application has been disposed of will you be able to address the merits of the matter, being the eviction application. This will result in an even greater delay in ejecting the tenant from your property.

In the event that a tenant does not vacate the property after the lease has expired, or has been canceled, the only remedy in the circumstances will be an application to evict the unlawful occupant from the property.

Contact our professionals at 041 363 6044 or for sound legal advice.

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This article is not intended to constitute legal advice and is produced for information purposes only and to provide a general understanding of the legal position relating to the topic. It is recommended that advice relating to the specific circumstances of your situation be sought from our attorneys before acting upon the content of this article. This article was written at a particular point in time and accordingly may not always reflect the most recent legal developments, if any, applicable to the relevant topic. Kaplan Blumberg and its partners and/or employees, are not responsible for any consequences which may follow upon any decision taken to act upon the information provided in this article.

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