Annetjie Coetsee is a practising Attorney, Notary Public and Conveyancer, operating from both the Cape Town and Helderberg branches of STBB. Her responsibilities include: Director of STBB, branch head of Somerset West office, Executive member and head of the Development Law Unit. The specialized Development Law Unit has nine specialists addressing development requirements in the fields of planning law, environmental law, construction law, renewable energy law and, very importantly, local government law. She is a practicing Conveyancer (dealing with a conglomerate of property related matters such as sectional titles, developments, bonds, transfers and municipal work for local councils). Although she specialises in conveyancing she is a family law attorney, with a special interest in the constitutional law aspects regarding children’s rights. She is part of the marketing department and takes care of the brand development on a national level. Annetjie is further responsible for compliance and reporting initiatives. She is involved with substantial research activities relating to the property market and property investment and communicates interesting and relevant facts to her clients and the media, conducts Legal Updates for banks and estate agents. Her knowledge and insurmountable experience in the property market and connections with key roleplayers in the property industry makes her an invaluable ally to any property investor.

From the desk of Annetjie | Tenant not vacating

Frustration and financial losses of a property owner, resulting from a tenant in arrears and who refuses to vacate after the lease was cancelled, have lead many a landlord to change locks or deny access to the leased premises in some or other way.

To add insult to injury, the problematic tenant is then successful in court in an application to restore his access to the premises under the old common law remedy, called mandament van spolie (spoliation).

How is this possible?

It is a fundamental principle of our law that no person may take the law into his or her own hands. In our example, the landlord may not himself dispossess the unruly tenant of the physical possession of property. If one proceeds to dispossess the tenant, the Court will punish this conduct by granting an order to restore the status quo ante (in other words, to restore things to the state they were in before the spoliation). In this context, It is important to remember that the remedy for spoliation is preliminary to any investigation into the merits of the dispute: it provides for interim relief, pending a final determination of the parties’ respective rights. This remedy is therefore merely a factual investigation and considers physical possession, it does not consider the right to possession.

Therefore, irrespective of how strong and justifiable you may think your case may be against another person who causes you harm, do not attempt to remedy the situation yourself. You risk that the unlawful tenant may succeed, be it on an interim basis, with a spoliation application to have the status quo ante restored. Only thereafter will you be able to address the merits of the matter.

In the event that a tenant does not vacate the property after the lease has expired, the tenant is unlawfully occupying the property. The remedy for this is an eviction application to evict the unlawful occupant from the property.

Contact us on info@stbb.co.za, should you require assistance.

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