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 info@kaplans.co.za for sound legal advice.