A Property24 reader asks:
A Property24 reader says she failed to pay her rent for 2 months, so the landlord locked her out and removed her belongings. What should she do?I'm a tenant and I failed to pay my rent in June and July. My landlord locked all my belongings in the house and told me that I should bring the money and that he would only open for me to move out. Prior to that he had given me one month's notice to vacate the premises.
He eventually removed all my belongings to a private self-storage facility and gave me the total amount owed to him, including removal of my belongings. He threatened to sell some of my stuff to cover his costs and I made a part payment and held onto some of it, requesting to see how my furniture was handled upon removal since I was not present when that happened.
I never refused to pay him. What procedures should be followed if I should discover that my furniture is damaged or find missing items?
Lara Doubell, an associate attorney specialising in evictions and commercial matters at Le Roux Attorneys Inc., advises:
Your landlord cannot lock the premises and refuse entry due to non-payment of rent. In terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), no one may be evicted from their home without an order of court made after considering all the relevant circumstances. Your landlord will have to comply with PIE in order to evict you. You are entitled to launch a mandament van spolie application which, if successful, will result in possession of the property being restored.
In terms of the common law, a landlord is vested with a tacit hypothec over the goods on the leased property as soon as the tenant falls into arrears with payment of rent (this gives the landlord security and a preference over other creditors). However, in order to enforce this hypothec, the landlord will have to approach a court in order to attach the movable property on the premises. The attachment of the movable property is necessary to render the hypothec effective or to “perfect” it. The landlord cannot merely, on his own accord, remove your movable property and sell same in lieu of payment of arrear rental by the tenant.
Goods that are removed by a landlord himself without a court order will not be protected under the landlord’s hypothec and such action will destroy the hypothec. You may bring a mandament van spolie application so that possession of your movable property may be restored. If your movable property has been damaged by the landlord, you may sue the landlord for these damages.
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