2011/06/14 05:06:37 PM Aethyrdragon Posts: 1	I have a tenant who isn't paying and while going the legal route would like to know if removing all the curtains (not part of the contract) counts as spoliation? Cheers
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2011/06/19 03:04:45 PM Marlon Shevelew Posts: 78	Any action which seeks to deprive a tenant of their benefical occupation would amount to spoliation -- Marlon Shevelew Specialist Landlord / Tenant law Attorney / Consumer Protection Act expert and National Legal Advisor to TPN www.marlonshevelew.co.za
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2011/07/30 08:30:12 AM decorum.35 Posts: 9	Hi Marlon Please can you clarify the disconnection of electricity.Attorneys have different opinions but I would presume yours may actually be correct. 1.A agent or landlord cannot cut power themselves. 2.You may not ask the Municipality to cut power due to unpaid rent. 3.The only time you may ask the Municipality or eskom to cut is if the electricity is in arrears and they have failed to cut power as per their own policy??
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2011/08/01 10:24:40 PM Marlon Shevelew Posts: 78	Watch this space for a detailed opinion -- Marlon Shevelew Specialist Landlord / Tenant law Attorney / Consumer Protection Act expert and National Legal Advisor to TPN www.marlonshevelew.co.za
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2011/08/18 11:58:02 PM Marc Lunau Posts: 175	Marlon, we are watching since a while :-) When will you post the opinion? -- Investor and Property Manager with value add solutions www.houses4rent.co.za
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2011/08/19 09:07:49 AM Marlon Shevelew Posts: 78	MANDAMENT VAN SPOLIEIS NOT AVAILABLE TO THE TENANT · If theprovision of electricity is not an incident of the tenant’s possession of thepremises in question, the mandament van spolie is not available. · It istrite law that the mandament van spolie is available only if the partyrequesting it demonstrates that the right of which he was deprived was aservitude right which was an incident of his possession or control of acorporeal thing. (Zulu v Minister of Works, KwaZulu, and Others 1992 1SA 181 (D) 190F). · Wherethe parties to a lease agreement explicitly exclude electricity from being anecessary incident of possession of the premises, the mandament van spoliewould not be available. This is because the court is obliged to uphold thewritten lease agreement between the parties which excludes it. · Thiswas the approach of the High Court in Ntombela and Another v Baramall (Pty)Ltd, unreported judgment of the Gauteng Provincial Division, Case No:07/13808, handed down on 4 July 2007. · Thelease agreement in that case provided “that amounts payable [for the provisionof electricity] do not constitute rental but constitute compensation payable tothe lessor”. · Thecourt found as follows: “I find merit in the argument by Mr Hitchings for therespondent that the parties expressly contracted to exclude the provision ofelectricity as constituting a necessary incident of possession or occupation ofthe premises. It is evident from the written agreement that the respondentwas obliged to and did in fact provide the facilities and equipment tofacilitate the supply of electricity to the premises by a third party. This, inmy view, is the main distinguishing feature between the present case and thecases of Nino Donino v De Lange, Naidoo v Moodley, Froneman vHerbmore and Queensgate Body Corporate. The version of therespondent that the supply of electricity was not an incident of theoccupation of the premises is based on the provisions of the written agreementbetween the parties. The applicant has placed no facts before me to sustainthe argument that the supply of electricity is in this case an incident ofpossession or occupation.” (para 5). · TheHigh Court went on to state that “the contention on behalf of the applicantthat the supply of electricity flows from the right to occupy and interferencewith such right is an act of spoliation irrespective of what the underlyingagreement may provide for regarding the supply of electricity is in my viewwithout merit.” · TheHigh Court concluded: “In the present case the terms of the contract betweenthe parties regarding the supply of the electricity service are clear andunambiguous and there is no good reason why the court should not uphold theagreement between the parties inthese circumstances. The dispute or disputes between the parties arise from thecontract between them and a case has not been made out for the remedy ofspoliation.” (para 7). THE PROVISIONS OFTHE RHA ALSO DO NOT ASSIST THE TENANT · Therelevant part of Regulation 12 (promulgated in terms of the RHA) provides: “Municipal Services (1) A landlord who is obliged by law or in terms of theexpress or implied terms of the lease to provide water, electricity or gasservices to a tenant, must: (a) provide such services; (b) not cause the non-supply or interrupted supply ofservices to a dwelling without a court order, except - (i) in an emergency; or- (ii) after reasonable notice to the tenant to domaintenance, repairs or renovations, but the services must be resumed as soonas reasonably possible after such emergency, maintenance, repairs orrenovations; (c) ensure that the tenant is not exposed to the risk ofinterruption or loss of service provider when such a payment become due, if thetenant has made payment to the landlord in respect of the amounts due for suchservices …” · We wereable to find no case-law dealing with Regulation 12 (promulgated in terms ofthe RHA). Nevertheless, the following observations can be made. · First,the provisions only apply to a landlord which “is obliged by law or in terms ofthe express or implied terms of the lease” to provide electricity. It thus doesnot apply to a landlord which is not contractually obliged to provide suchservices. · Second,where the services are interrupted by a third party, such as a service provider(as opposed to the landlord), the landlord is only liable “if the tenant hasmade payment to the landlord in respect of the amounts due”. Notably, thisfactor only comes into play however if it is proven that the landlord was“obliged by law or in terms of the express or implied terms of the lease” tohave provide electricity to the tenant in the first place. · Theseprovisions of the Regulations must be read together in order to make sense.They provide a scheme whereby a landlord which is under a legal or contractualobligation to provide electricity to a tenant must not cause the suspension ofelectricity to a tenant. This can only refer to a situation where the landlordhimself requests the disconnection of a service on grounds other than becauseit is in arrears. · This isclear when read with Regulation 12(1)(c) which imposes liability on thelandlord who does not take steps to prevent the suspension of electricity by athird party (such as a service provider), only where the tenant has madepayment to the landlord for such services. The necessary implication is thatwhere a tenant has not “made payment to the landlord in respect of the amountsdue”, the landlord has no liability to protect the tenant against the potentialsuspension of electricity by the service provider. · This isalso plain when one has regard to the previous Regulations applicable in theWestern Cape (promulgated under the RHA). These Regulations explicitly gave thelandlord the right to “interrupt the supply of electricity or gas services …where the tenant is in arrears with the payment of the fees for such servicesand fails to pay the arrears within 7 days of receipt of a notice from thelandlord to do so.” (Regulation 8(2)(c) of the regulations promulgated by theWestern Cape Government on 1 February 2002) · It isinconceivable that the new regulations would remove the landlord’s right toremedy non-payment by a tenant by securing the suspension of electricalservices by a third party. For this reason, it makes sense to read Regulation12(1)(c) in a manner which allows a landlord to inform a service provider thatan account is in arrears when a tenant fails to make payment and thus allow thesuspension by the service provider in the manner contemplated by Regulation12(1)(c). · Consequently,the tenant will not be able to establish a contravention of Regulationspromulgated in terms of the RHA either. Marlon Shevelew -- Marlon Shevelew Specialist Landlord / Tenant law Attorney / Consumer Protection Act expert and National Legal Advisor to TPN www.marlonshevelew.co.za
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2011/08/19 09:09:42 AM Marlon Shevelew Posts: 78	Hi all Difficult to put my opinion in a format for the forum. If anyone wants it ina nice and neat fashion please e-mail me on marlon@marlonshevelew.co.za -- Marlon Shevelew Specialist Landlord / Tenant law Attorney / Consumer Protection Act expert and National Legal Advisor to TPN www.marlonshevelew.co.za
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