Owners who rent out sectional title units must be vigilant and screen tenants thoroughly – otherwise they could find themselves behind bars.
This warning comes from Marina Constas, a sectional title specialist and a director at BBM Attorneys.
“When it comes to a sectional title complex, the bottom line is that the buck stops with the owner. In terms of South African law, a body corporate cannot evict a tenant who causes havoc in a complex,” she says, referring to a recent arbitration against an owner whose tenant had been a bad apple in a complex ever since he moved in.
“He threatened and verbally abused several tenants and a case of theft was opened against one of his children. We couldn’t understand how an individual could carry on in such a manner, but what we found even more bizarre was that, despite warnings, letters of demand and arbitration notices being issued to the owner, the tenant was neither evicted nor even told to stop continually breaking the rules of the complex,” she says.
Constas believes warning owners that they are not only responsible but could be prosecuted for their tenants’ misdemeanors is becoming increasingly important as more and more investors take advantage of the depressed property market.
“It’s a buyer’s market and a sectional title complex provides an attractive investment opportunity for those in a position to buy a unit and rent it out – but they do need to know that there is far more to leasing a property than collecting the money at the end of each month.”
She says there are legitimate concerns in complexes where most residents are tenants rather than owners.
“For whatever reason, tenants seem to hold no real interest in the units and are less inhibited when it comes to breaking the rules. This doesn’t mean all tenants are troublesome. As in every sphere of life, there are always those select few who give the rest a bad name.
“In this particular case, a settlement was reached during arbitration and the owner agreed to give his tenant notice with immediate effect. This is a remarkable victory for the sectional title industry and goes to show that an owner’s right to live in a peaceful and harmonious environment must be fiercely protected at all times.”
She says the crux of the matter is that there is no legal connection between a body corporate and a tenant, which means that any transgressions or misconduct will be taken up against the owner who would be liable in terms of Prescribed Management rule 31 (5) of the Sectional Title Act.
When, in a situation like this, the outcome of an arbitration is in favour of one of her body corporate clients, Constas advises them to have an award made an order of the High Court. That way, if a tenant continues to disregard rules, the owner of a unit could find himself in contempt of court and liable for a hefty fine or even a jail sentence.
Citing management rule 69 of the act, Constas says it is an owner’s duty to ensure his tenants, employees, family members and guests comply with the complex rules.
“For example, if your inebriated visitor accidentally damages the main gate, you will be directly liable to the body corporate for the costs of repairing it. You may have legal recourse against your visitor, but the body corporate will claim from you.”
She says she advises clients who are trustees of sectional title units to create paper trails. Letters must be addressed to the landlord with copies sent to the tenant as well.
“In many cases where pressure is brought to bear on a landlord, he, in turn, deals successfully with his tenant. If the correspondence leaves the landlord unmoved, the other option would be to take the dispute to arbitration and cite the landlord or owner as the respondent. When the landlord sees that he is being dragged into an arbitration, he may decide that it would be easier and cheaper to persuade the tenant to behave.”
She says the best approach would be for the conduct rules of a complex to include a clause stating that it is compulsory for a landlord to attach these rules as an addendum to the lease, and to include a provision that the tenant is bound by the rules of the complex. In this way, it would be simple for the landlord to claim that the lease has been breached if his tenant contravenes the rules.
hi, we issued i fine to the owner becuase we incurred a cost to call out security to get rid of his tenants overcrowding. Is this correct in charging the owner for the cost of getting the security to come and get rid of the tenants overcrowding and nuisance. if you can also email myself.
Hi Ayoob,
You can do so, but you need to ensure you can back up your claim, have proof of written correspondence in which you gave the owner sufficient notice and then based on failing to comply charged the fine. However, you still need to afford the opportunity to owner to defend himself.
Another critical requirement is that your conduct rules allow for fines and penalties and that they were assigned properly.
I suggest you charge the additional cost to owner not as a fine, but as direct additional cost to the section or exclusive use area, basically as levy.
By doing so, you avoid all the fining requirements.
Hope this helps.
Michael
Hi Michael
The managing agent alleges that my tenant have damaged the door-chain of another tenant. When I visited the property the claimant didn’t point out anything broken, instead she said her door-latch isn’t working properly. I reported back to the managing agent the same day and told her that nothing was broken. Receiving no further correspondence, I assumed that this matter was laid to rest. However I am now being billed for a broken door-chain. Like i said before, I’m prepared to take responsibility for the actions of my tenant. Why is the claimant’s word taken above mine, the agent didn’t even go and verify the claim made by the tenant.
Dear Michelle,
The door is common property. In other words, it is a 50/50 split. However, the chain in the side is part of the section and hence the body corporate nor the managing agent can really charge for it.
I would lodge a dispute with the body corporate according to prescribed management rule 71.
Hope this helps.
Michael
Hi there,
What can one do to find the contact details of the owner? My neighbours tennants are point blank refusing to follow the rules of the complex. The managing agent says his hands are tied and the trustees says I must contact the owner to lay the formal complaint. The owner is the nephew of the managing agent and the managing agent is giving me incorrect contact details.
Is there any legal method I could use to obtain the details and/or anything I can do in the interm to stop the tennants damagaing my property and vehicles?
Thanks,
Erick
Dear Erick,
You have a right to the contact list of the owners. You must request in writing and state a reason for your request. If that fails, you can register a dispute (according to PMR 71) and refer the matter to arbitration to enforce your right. This is the best way.
Another way is to request this information from the deed office. Property ownership is public information and can be obtained at the deeds office.
Hope this helps.
Michael
I’ve got upstairs neighbours from hell!. They have screaming brats and they shout and laugh and talk above all this. But my main probem is that they bang and chop on the floor constantly and are always dropping heavy objects, at times until one in the morning. The chairman of the body corporate has spoken to them after I lodged a formal complaint (I own my unit and they are tenants) he even took the man into his house and asked the upstairs neighbour to drop a teaspoon so the tenant could hear the noise. A teaspoon in comparison with whatever they are banging with !!!! They have totally ignored warnings and the chairman says that unfortunantely they are upstairs from me and only I hear the banging and carrying on although others have heard the kid screaming. What do I do, the chairman seems reluctant to help me.
Dear Helen,
Thanks for your email. I am sorry to hear that you have such a bad neighbour. I suggest that you start building up a paper trail of complaints, case no from SAPS (if you have not already) and then consider arbitration against the neighbour for being a nuisance and/or the body corporate for not enforcing the rules. You then refer the matter to arbitration in accordance with prescribed management rule 71. If the above neighbour is a tenant, even better (as the landlord will suffer financial damages).
It may cost you some money to start the process, but it may be the solution you are looking for.
Hope this helps.
Michael
Hi there,
A unit holder in our complex encourages her visitors to be a nuisance to me and other unit owners or tenants eg parking right in front of my unit when visitor parkings have been allocated elsewhere, making loud sny remarks and playing peeping tom. A lawyers letter pointing out that the Act makes her responsible for her visitors conduct she simply defies. The governing boby are useless.
How can I initiate the PMR 71 procedure – step for step please.
Thanx.
Hi Andre,
Thanks for your email. The PMR 71 points the procedure out point for point. You can download a copy of the rules here http://www.sectionaltitlesa.co.za/Forms/PMR.pdf.
I suggest you consult an attorney first or use an arbitration service (less costly) to do this for you.
Hope this helps.
Michael
The caretaker at our complex keeps blaming my kids for everything that happens in the complex. I have sent several letters to the agents to complain about her but nothing gets done & I don’t see any correspondence regarding my complaints. There are lots of other tenants in this complex that have a problem with her. What else can we do about it?
Michael, I see you refer a lot to arbitration, my experience is that the arbitration must be dealt with the deedsoffice, but they know nothing about it, said I must use a private arbitrator which will look at my case for R2500 and then I must pay per Hour rates there after. Verrrrry expensive. Then your reply to Yaoob, is it legal to charge a owner a penalty fee on his levy for not keeping to the managing rules?
Hi Michael,
Please assist me to protect my tenent, my tenent is a Zimabawean workin in the restaurant. She sometimes come late from work around 12. So she is mostly at home during the day. I’m sure of this.
So in chairmans views,this is the behaviour of the drug dealer.
I have subdivided my flat with a dry wall, I allowed this woan and his husband and the kid to stay in the 1 bedroom and share the mainbedroom and the half bedroo. i visit them to check if they not more then 5, and if everything is accordingly. I didnt let the body coparate know, this.
I have received a letter staing that my tenent are trouble, and overcroweded.
The reasons were, they subdivide, they are foreiners and that wht foreiners do.
I beleve that they are not overcroweded, but I sence that some of the allegation they are based on them being foreingners. Please assist me so i can protect them and myself. They have sent me a letter without demamnding R466.80 as per Management Rule 31(5), without even giving me a chance to rectify things. They also go to my flat unanounced, they started to deny my tenent acces at night.
Please assist