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Monday Sep 11, 2017

When sectional title tenants cause problems

From excessive noise, inconsiderate parking, and oil stains on paving, to satellite dishes put up in the wrong place, overcrowding at units, and barking dogs, bodies corporate have to deal with it all.

But when the occupier of a unit is a tenant, how does the body corporate deal with complaints?

Here are four key questions, along with clarifying answers.

  • Can a body corporate declare a dispute with a tenant?

    The Rental Housing Act 50 of 1999 only deals with disputes between bodies corporate and owners, or between owners and other owners.

    "If the body corporate has a dispute with a tenant, it is addressed to the owner," says Natasja Vincent, manager of the Port Elizabeth Just Property rentals business.

    "As managing agents, we investigate the matter on behalf of the owner, liaising with the body corporate, to understand the matter and to explore appropriate remedies, including warnings and penalties."

    Samantha Craddock, of Kaplan Blumberg Attorneys, says: "If the tenant does not rectify the breach after a warning notice, the body corporate can impose a fine or penalty on the owner, due each month, added to the owner's levy account, until the breach is remedied. The owner can, in turn, turn to the courts to recover the loss and/or evict the tenant."

  • Can a tenant be evicted or charged the levy if a landlord stops paying the body corporate levies?

    Vincent says no. "The body corporate cannot take action against the tenant as they are not the registered owner."

    Legally, the landlord is responsible for the levy and the body corporate must take this up with the owner.

    Craddock says as long as the tenant's rental is up-to-date, he is entitled to occupy the premises until the lease expires.

  • What happens if the tenant is responsible for the levy in terms of their lease but do not pay?

    A tenant cannot be charged for the levy, says Vincent. The tenant can only be invoiced for amounts billed by the body corporate for utilities, garden service and/or any such charges if stipulated in the lease.

    "However, the owner remains ultimately responsible. The same applies to municipal accounts. The account holder (owner) is responsible for all payments regardless of whether the tenant has agreed to pay or not."

  • Tenants often don't know the rules of the body corporate. Who is responsible for educating them?

    The Rental Housing Act requires a landlord of a sectional title unit to attach a copy of the scheme's rules to the lease agreement, says Vincent.

    "Best practice would be for the tenant to sign and acknowledge that they've received, read and understood the rules."

    Brian van Wyk, a Gauteng-based Just Property franchisee, says: "Disputes that arise with the body corporate will always be brought to the owner of the unit. The owner is ultimately responsible for dealing with the tenant and ensuring he adheres to the rules."

    Van Wyk says a good rental agent can take ownership of the responsibility to inform the tenant of the rules.

    "Being able to prove that a tenant has read and understood the rules can help to bring clarity to dispute resolution efforts."

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