A Property24 Reader says that despite providing her landlord, who is also her employer, with a 30-day notice that she will be moving out he proceeded to disconnect her water and lights and deducted money out of her weekly pay for rent.
"I have not signed a lease with him and there is no other paper work regarding our agreement.
She also mentions that she had to quit working with him to take care of a family member, which upset the landlord.
"What can I do about him removing my belongings without my permission?" asks the reader.
Anli Koen attorney at Herold Gie Attorneys shares the following advice:
1. What the Law says:
In terms of section 4 (3) (c) of the Rental Housing Act No 50. of 1999, a tenant has a right against a landlord to not have his/her possessions seized, except in terms of the law of general application and only if the landlord has first obtained an order of court. On the other hand, a landlord has a right called a tacit hypothec. It’s tacit because it is understood or implied that it comes into effect by operation of law and not by agreement between the landlord and the tenant. The hypothec secures the tenant’s obligation to pay rent to the landlord. This means that the landlord obtains a limited real right over the tenant’s goods on the leased premises from the date that the tenant is in arrears. However, this right does not automatically accrue to the landlord- it first needs to be perfected. In order to perfect a landlord’s hypothec, a landlord needs to first obtain an interdict restraining anyone from removing and/or selling the tenant’s goods, pending (i) any action for the outstanding rent or (ii) an order attaching such goods.
It’s not clear from the facts provided by the tenant how much was owing in respect of rent and whether he/she returned to the leased premises to claim his/her possessions within a reasonable amount of time after cancelling the lease agreement. If the tenant did not return, the landlord may argue that it was reasonable for him to assume that the tenant had permanently vacated the premises and “abandoned” his/her possessions. Be that as it may, the landlord has acted unlawfully. A landlord has a legal responsibility to keep a tenant’s possessions safe. The landlord in this instance, had a legal duty take all reasonable steps to contact the tenant first, confirm that tenant was in breach of the lease agreement in that he/she was in arrears with outstanding rentals, provide the tenant with a reasonable period in which to remedy that breach and then to institute legal action and ultimately obtain a court order to repossess the tenant’s goods.
2. What action can the reader take against the landlord?
"I would advise the reader to immediately issue a written letter of demand and deliver it to the landlord (i) by hand and get the landlord/representative to acknowledge receipt and (ii) by registered post at the landlord’s physical address and the leased premises address, confirming therein that the landlord has acted unlawfully and committed a criminal act by confiscating the tenant’s possessions without a court order and that the tenant demands the return of his/her goods and reserves all his/her rights to institute further action against the landlord and that he/she may lay a criminal charge for theft and/or institute a claim against the landlord for damages, if the goods are not returned to the tenant within 14 (fourteen) days from the date of the letter of demand.
"The reader also needs to lodge a written formal complaint setting out the details of the complaint on the prescribed complaint form at his/her local Rental Housing Tribunal or on-line (if possible) and/or approach his/her local Legal Aid Clinic for further advice". The contact details of all the Rental Housing Tribunals in the country and complaints procedure can be found on the following website addresses: Rental Housing Tribunal.
* Disclaimer: The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.
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