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"Pay Extra for My Generator or I'll Cut You Off During Loadshedding". Can a Landlord Do That?



Loadshedding continues to plague us and our business, 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 loadshedding, 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 the "corporeal" thing like a car, or a house, or a parrot. But when it comes to an "incorporeal" 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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