Can a body corporate or landlord cut off your electricity?
24 February 2017

– Summary

Landlords and Body Corporates sometimes try cutting electricity to get tenants to pay. Here we discuss the Laws relating to this situation.

This is a question that comes up often, as cutting electricity is seen by Body Corporates as an effective way to force owners to pay outstanding funds.

Previously, only Eksom or a subsidiary supplier (e.g. a local authority; City Power; municipality) could terminate a service.

Until recently legislation prevented a Body Corporate or landlord from cutting any services and doing so was an offence with sanctions that could include a fine or imprisonment … however, a recent case has extended the right to cut electricity and water to a Body Corporate.

The Judge, in this case, extended the right to cut electricity (and water) to a Body Corporate, as it was felt that utilities should not be subsidised where the occupant refuses to make payment of amounts legitimately owed.

Although this sounds ominous, in practice not much has changed; to take action against a defaulting occupant, a Body Corporate MUST FIRST OBTAIN A COURT ORDER TO CUT SERVICES.  The difference now is, once the court order is obtained, the body corporate itself can cut the service and Eskom or the municipality is not needed.  Further, it would appear that this extended right is only applicable where the outstanding money is in respect of utilities (i.e. water and electricity).

The general rule in these situations is a Court Order is usually needed.  Without a Court Order, a body corporate or a landlord cannot cut off your electricity or change the locks, even if the occupant is in arrears with rent; water; electricity; levies; etc.  If they do, the occupant is the entitled to institute what is called a Spoliation Application to restore the services.

The word Spoliation come from the legal remedy used to restore possession, known as mandament van spolie.  This remedy exists to prevent people from taking the Law into their own hands rather than using due legal process; it also creates legal certainty.

Spoliation At a Glance

Legal Requirements for a Spoliation Application:

  • The applicant must have been in possession of the property.
  • The respondent must have deprived the applicant of that property forcibly or wrongfully.

Defences to a spoliation application:

  • A denial that the respondent has dispossessed the applicant.
  • The applicant was not in possession.
  • The deprivation was not unlawful.
  • The impossibility of restoration.
  • Counter-spoliation – that the respondent recovered possession immediately in the act of spoliation by the applicant.
  • That the application is merely ancillary to an application for specific performance.

In most cases, when services are terminated by a Body Corporate or landlord without a Court Order, no defence can be raised and a court will find in favour of the applicant.

Please note that the above information is also applicable to landlord / tenant relationships.

DISCLAIMER: THERE ARE MORE CONSIDERATIONS THAN WE CAN COVER IN THIS ARTICLE SO ONLY USE THIS INFORMATION AS A GUIDE.   THIS INFORMATION DOES NOT CONSTITUTE LEGAL ADVICE.  IT IS ALWAYS BEST TO DISCUSS YOUR SITUATION WITH AN ATTORNEY; CONTACT US AT 0861 88 88 35helpdesk@gcm-legal.com AND THROUGH THE CONTACT FORM ON THIS PAGE.

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