Sectional Title – the Body Corporate and Owners

Most owners are unaware of their legal duties as members of a Body Corporate. They are very aware of their duty to pay levies but appear to be less aware of others set out in the Conduct and Management Rules. In terms of the Sectional Titles Schemes Management Act – these are some of the duties owners are obliged to fulfil.

Owners must:

1. Notify the Body Corporate whenever they lease their unit to a new tenant
2. Notify the Body Corporate if they have sold their unit; if they are registering a new bond over their unit or moving their bond over to another bank.
3. Pay for any assessments required to be done in respect of their sections.
4. Pay any charges and expenses attributable to their sections
5. Keep the common property over which they enjoy exclusive use rights neat and clean and accessible to any Body Corporate maintenance.
6. Use the common property (such as the communal swimming pool or parking area) without unreasonably interfering with others’ use thereof.
7. Make sure their guests do not use their sections or exclusive use areas in any way that may cause a nuisance to neighbours and yes, this means owners are also responsible for their guests’ behaviour.
8. Not use or allow others to use their sections or exclusive use areas for any purpose other than that shown on or implied by the scheme’s registered sectional plan, unless the written consent of all owners is first obtained.
9. Grant anyone who is duly authorised by the Body Corporate access to their section in order for that authorised person to inspect the section to see if the body corporate’s rules are being broken by the occupants thereof; provided that the owner received notice of the inspection and that it takes place during reasonable hours.
10. Grant anyone who is duly authorised by the Body Corporate access to their section in order for that authorised person to maintain pipes, wires, cables and ducts capable of being used by other sections; provided that the owner received notice of the inspection and that it takes place during reasonable hours, except in cases of emergency, when the body corporate does not have to give notice to the owner.

Tenants in a Sectional Title Scheme

Finding a suitable tenant to rent investment units in sectional title is becoming increasingly difficult. Credit checks, phone calls to previous landlords and checking for criminal records may show that the potential tenant is ‘clean’ but there can never be an absolute guarantee as to how the tenant will behave. But what if the tenant turns out to be a nightmare and causes havoc in the scheme?

The legislation governing Sectional Title schemes in South Africa focuses on the direct relationship between the Body Corporate and owners. But these Rules will also apply directly to tenants.

Tenants are bound by the Conduct and Management Rules of the scheme

The Sectional Titles Schemes Management Act, 8 of 2011 (“the SMSTA”) provides that a scheme’s Rules bind the Body Corporate, owners of sections and any person occupying a section. The Body Corporate also is given the power to do whatever is reasonably necessary to enforce the Rules. One of the Body Corporate and owners’ obligations is to deliver a copy of the Rules to any person who becomes an occupier of a section. The Rental Housing Act requires a copy of the scheme Rules to be attached to a written lease, so the tenant is made aware of the Rules and know that they must comply with them!
Should the tenant under any circumstance thereafter not comply with these Rules, the section owner / landlord must know their liability in relation to their tenant’s actions.

The prescribed Rules require owners to take all reasonable steps to ensure compliance with the conduct Rules by their tenant or other occupant of their section, including employees, guests and any member of their family, their lessee or their occupant and also and to ensure that they do not behave in a way likely to interfere with the peaceful enjoyment of another section or of the common property.

While owners must take reasonable steps to make sure their tenants behave, they are not responsible for their tenants’ breaches of Rules or other wrongdoings. Ie: if a tenant damages common property, such as crashing their car into the scheme’s gate, the Body Corporate should institute a delictual action against the tenant to reclaim the costs of repairing the gate, rather than making a claim against the section owner / landlord.

CSOS can assist

The Community Schemes Ombud Service Act, 9 of 2011 (“the CSOSA”) provides an easy and inexpensive route for the Body Corporate to follow to deal directly with tenants’ breaches of the rules or delictual actions. The CSOSA makes provision for specific requests for relief that deal with behaviour issues as well as the payment of specified amounts of money. While not all Sectional Title Body Corporateshave fining provisions in their rules (essential for imposing valid fines) most do and the fine can be collected in terms of a CSOS order, if the tenant refuses to pay.

Owners only to take reasonable steps

In the past it was common practice for trustees or the managing agent to hold owners directly responsible for their tenant’s misbehaviour and even fine them, but the requirements in the SMSTA and prescribed rules that owners “take reasonable steps”, removes the positive obligation of owners to ensure their tenants obey the Rules. Additionally, the prescribed rules now require an enabling provision in the scheme rules for the Body Corporate to add fines to an owners account. The members would have to make a specific rule that allowed the body corporate to fine them for their tenants’ transgressions – highly unlikely to happen!
The new sectional title legislation makes it much easier for the body corporate to deal directly with misbehaving tenants and makes it harder to leave it to the owner to do.

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When can Trustees implement special levies?

Following the attention the concept of special levies has enjoyed in the media over the past few weeks, the question on every sectional title unit owner’s lips seems to be: “If I did not agree to a special levy being raised, how can the body corporate possibly add this additional amount to my levy statement?” The question often goes hand-in-hand with a strong opinion that such contributions cannot possibly be legally due and payable.

This opinion seems to be reinforced by some owners’ opinion that trustees no longer have the authority to raise special levies at all, due to the fact that the cost of maintenance and repairs should be provided for in the scheme’s ten year maintenance, repair and replacement plan and should be included in the scheme’s reserve fund budget.

While it is true that special levies should not be raised to pay for routine maintenance expenses such as the painting of the building, special levies are still very much a part of our law. The trustees still have the power to raise special contributions from members in certain circumstances, but these circumstances are limited.

In order for a Board of Trustees to legally implement a special contribution, the following criteria has to be met:
1. The trustees need to pass a written trustee resolution to raise such contributions
2. The special contributions must be required to meet an expense that is necessary
3. The special contributions must be required to meet an expense that is urgent

A classic example of where special contributions can and should be raised, is when a storm damages a part of the common property roof, and as a result of the damaged roof, the sections beneath it suffer water damage. If the Trustees take action without delay, the damage will be limited, saving the Body Corporate costs in the long run, while a postponement of the repair works until after the budget for the next financial year has been approved at the next AGM will mean that the Body Corporate will have to pay both the repair costs and the section owners’ (now much bigger) claim for damages.

If the Trustees pass a written Trustee Resolution to levy members with a special contribution to cover unbudgeted expenditure that is necessary and cannot reasonably be delayed until provided for in the following financial year’s budget, the Trustees do not need to consult with the owners. The levy will be legally due and payable despite a lack of consent by any or all members. However, if the Trustees implement a special levy without meeting these criteria, the owners can approach CSOS for relief.