Can a landlord disconnect the electricity supply to the leased premises of a non-paying tenant?
The article is a summary of the recourse available to an aggrieved landlord in the case of a non-paying tenant – with specific reference to the disconnection of electricity supply to the leased premises – and on the other hand, the remedies available to a tenant (whether paying or non-paying) when the electricity supply was unlawfully disconnected to the premises of which the tenant is supposed to enjoy undisturbed use and enjoyment.
When a landlord encounters a tenant who is in breach of a lease agreement, irrespective of whether the lease agreement was entered into for a residential or commercial property, the question arises if the landlord may then disconnect the utilities (i.e. electricity and/or water supply) to the leased premises in order to make it uninhabitable for the tenant, in the hope that the tenant vacates the premises without having to institute eviction proceedings.
This might seem like a viable option to consider by an aggrieved landlord; however, the landlord must be reminded that it is not allowed to take the law into its own hands by disconnecting the utility supply out of own stance and without a Court Order. Luckily, the South African law does recognise the right of a landlord as a property owner and does indeed provide remedies for aggrieved landlords.
In the case of Anva Properties CC v End Street Entertainment Enterprises CC the Court allowed termination of the supply of electricity to the leased premises on the basis that the landlord had provided sound reasons justifying such termination. There was also a duty on the landlord to lay a factual foundation for the relief sought (i.e. disconnection of electricity). Therefore, in order for a landlord to be successful in its request to disconnect the electricity of a non-paying tenant, the landlord must prove that it will suffer irreparable damage if the electricity is allowed to continue, for example the landlord must prove that the likelihood to recover the arrears (either rent or utility bills) from the non-paying tenant is very slim.
On the other hand, and should the landlord indeed take the law in its own hands by wrongfully disconnecting the electricity supply of a non-paying tenant without a Court Order, the tenant may in then approach the relevant Court for urgent relief in the form of a “Spoliation Order”. When the Court is approached by a tenant for such an order, and whether the tenant is in arrears or not, the Court will only consider the following two questions:
- Was the Tenant's use and enjoyment of the leased premises disturbed by the landlord's action of disconnecting the electricity? and
- Was the disconnection unlawful and done without a Court Order?
When the answer to both the above questions are positive, the Court will grant the Spoliation Order in favour of the tenant and order the landlord to place the tenant back in the possession it was before the electricity was cut, and on top of that, the Court will order the landlord to pay the tenant's legal fees associated with such an application. It is important to take note that the Court will not consider whether the tenant is in arrears with its rent or utility bills.
It is prudent for either of the parties to take action early when the indebted amount is still low and manageable. It is further crucial to seek legal advice from an experienced legal practitioner practicing in Property Law to ensure that the correct procedure is followed before disconnecting the electricity supply of a non-paying tenant, or in the case of a tenant, when the electricity supply was unlawfully disconnected, which can include assistance with an urgent application to put the tenant back in the possession it was before the electricity was disconnected.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.