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  • King-Essack & Associates

'Pay Extra for My Generator or I’ll Cut You Off During Load-shedding'. Can a Landlord Do That?


electrician

Load-shedding continues to plague us and our businesses, and when tenants are connected during power cuts to their landlord’s alternative power source – such as a generator – it is essential for both parties to understand their respective rights.







Lights out for a shopping mall gym


  • An upmarket gym had relied for years on its shopping mall landlord’s generator to get through load-shedding, without having to pay extra for it.

  • 'Out of the blue' the landlord demanded a monthly 'diesel recovery levy' and a dispute arose over whether it was entitled to do so or whether the cost was already covered by an existing 'all-inclusive monthly fee for all expenses related to the lease of the premises'.

  • The parties agreed to refer that dispute to arbitration but then the landlord decided to flex its muscles by cutting off the gym’s connection to the generator.

  • The gym obtained an urgent reconnection order from the High Court. Although that is only a temporary solution for the tenant (it must still win the arbitration or pay the extra levy), the Court’s decision is a significant one in that it has confirmed the principle that access to an alternative source of power does fall under the protection of the 'spoliation' principle.


'Spoliation'- no one can take the law into their own hands


No one can go the self-help route and take the law into their own hands by removing property from someone else without a court order. Anyone deprived of possession like that can urgently obtain a 'spoliation' order forcing an immediate return to it of the property. 


At this stage, the court won’t be interested in who has the legal right to the property – all it will look at is whether:

  1. The possessor was in 'peaceful and undisturbed possession', and

  2. It was unlawfully deprived of that possession.


That’s straightforward with possession of a 'corporeal' thing like a car or a house or a parrot. But when it comes to an 'incorporeal' thing, like access to an alternative energy source, things become more complicated. Now you must prove that you had 'quasi-possession' of the power supply.


As complicated as that may sound, what’s important on a practical level for both landlords and tenants is that this judgment has confirmed in principle that access to an alternative power supply such as a generator falls under the law’s protection as much as possession of a corporeal thing.


The bottom line


Whether or not a tenant has an enforceable right to its landlord’s alternative power supply – and if so whether it must pay extra for it - will depend on the wording of the lease.


But the landlord cannot just cut off an existing power supply without following legal process.

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