Know when to silence the body corporate

Thuli Zungu Consumer Line

Demystifying Sectional Title is a consumer rights made-easy book which simplifies what sectional title is all about and a must-have for consumers who occupy this space.

This book can help people like Linda Moreosele know their rights better and not be taken for a ride by their body corporate and managing agents.

Moreosele, 40, had lost her employment after the company she had worked for was placed under liquidation.

She made a payment arrangement with the body corporate in August, and have been making regular payments since the month of July as agreed.

Despite this, the body corporate went ahead and obtained a default judgment against her and attached her goods without notifying her, she said. 

"I am questioning the procedure followed, since I was neither informed nor warned before the latest legal action was embarked on, and there has been no follow-up communication since August," she said.

Moreosele claimed that the body corporate and managing agent have, unfortunately, resorted to what is tantamount to bullying and harassment.

"I will not be responsible for the frivolous fees incurred in this whole exercise, and as far as I am concerned, the fees are wholly the responsibility of the body corporate," she said.

The book is co-authored by Marina Constas and the adjudicator of the Community Schemes Ombuds service, Karen Bleijs, and it spells out the rights of the dwellers of sectional title.

It does not use legal jargon, and the authors use examples of real cases they have encountered in their careers.

Chapter 7 of the book explains how legal fees work under the new legislation.

The themes of their latest edition aims to offer knowledge and practical tools to make life in community schemes less stressful.

There are many funny scenarios taking place in community scheme on daily basis that make this book entertaining all by themselves.

Karen Bleijs
Karen Bleijs

Constas advised Moreosele to approach the Community Schemes Ombuds Service for their intervention.

Responding to the issue of legal costs, Constas said the Sectional Titles Schemes Management Act sets out clearly that the body corporate cannot place any amount on the owners account which does not relate to the levy or a charge levied in terms of the Act or the rule without the member's consent or the authority of a judgment or order by a judge, adjudicator or arbitrator.

In other words, the legal costs in taking action against the debtor must either be agreed upon by the body corporate and the debtor or must be taxed at the Magistrates of High Court depending on where the action was taken.

"The body corporate can no longer just add the legal costs directly onto the account. In fact, it should not have been doing that in the first place," Constas said.

She said in order to recover costs, parties must agree to the fees or tax a bill.

The updated third edition of Demystifying Sectional Title is now available to order from marina@bbmlaw.co.za 

What to do if you are disconnected over arrears

Marina Constas co-author of Demystifying book.
Marina Constas co-author of Demystifying book.
Image: KATHERINE MUICK-MERE

Constas said many owners in sectional title buildings who are in arrears with their levies are faced with the situation where their electricity supply is unilaterally cut off by the trustees or managing agent.

She said more recently, the practice of reducing the electricity was attempted in order to avoid court action against the body corporate.

When asked what can owners do in this situation, she said the Community Schemes Ombud Service has unequivocally held that trustees in buildings do not have the legal right to terminate or reduce electricity services unless they have a court order.

Constas said the South Gauteng High Court has upheld this view in the case of Claudia Niehaus vs High Meadow Grove body corporate.

The high court held that the body corporate is not the supplier of electricity and therefore cannot wield this type of power in the scheme, she said.

Constas said Trustees may argue that the right to terminate or reduce electricity is recorded in the rules of their building.

"This type of clause constitutes nothing, but a power to interfere with such person's right to use the electricity supply," she said.

The Community Schemes Ombud Service will not provide a compliance certificate for such a clause in the rules, she said.

She said an owner who faces this situation can go to court to obtain a spoliation order, which means that the Body Corporate must restore possession of the electricity back to the owner.

"Alternatively, an owner can approach the Community Schemes Ombud service for relief."

It should also be noted that if there is a tenant in the unit where electricity is disconnected, the tenant could approach the rental tribunal for relief, Constas said.

"Make no mistake, it is very important for owners to keep up with their levy payments. The body corporate has every right to claim unpaid levies and can go about collecting the levies in a number of ways," she said.

They may institute legal action and would be entitled to recover the taxed legal costs from the defaulting owner and may actually attach and sell the unit, she said.

She said they may also approach the Community Schemes Ombud and now, with the latest legislation, could obtain an order attaching the rental from the defaulting owner's tenant.

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