I have received a letter from the Body Corporate lawyers that I need to give my tenants notice.
A Property24 reader asks:
I have tenants and they have been with me for a long time now – always on time with rent and the place is in superb condition.
The tenants and the Chairman of the Body Corporate are in constant dispute – it has now gone so far that I have received a letter from the Body Corporate lawyers that I need to give them notice – they must be out by the end of March – if they do not hear from me they will take the matter to High Court for an eviction order.
I am not sure what my rights are? I do not want to give them notice as they are the best tenants one can get – I am still waiting for the lawyer I have contacted. We had an arrangement that they would first notify us but they simply ignored it and went straight to the lawyer.
Any advice would be appreciated?
Marlon Shevelew, specialist rental and eviction attorney at Cape-based legal firm Marlon Shevelew and Associates replies:
The answer to this question is that the Body Corporate cannot order an owner to give a tenant notice to leave the premises.
In fact, the Body Corporate can take absolutely no action against the owner, unless the tenant has breached a rule of the Body Corporate.
To determine whether a breach has occurred one would need to take a look at the Management and Conduct rules and determine if a breach has actually occurred.
The mere fact that the trustees are unhappy with the tenant is insufficient to amount to a breach of the rules.
If a breach has occurred, it is true that the landlord is responsible for any consequences flowing from such breach, including paying any penalties associated with the breach.
However, this does not include the right to demand that the landlord evicts a tenant.
This is clear from the judgment of the High Court in Body Corporate, Shaftesbury Sectional Title Scheme v Rippert’s Estate and Others 2003 5 SA 1 (C).
There, the court was called upon to decide whether it was entitled to issue an ejectment order against persons who continually contravened the conduct rules of the scheme.
The Body Corporate (applicant) sought a final interdict against the respondents and in the event of non-compliance an order for temporary ejectment until compliance with the interdict.
In the alternative the Body Corporate sought a prohibitory interdict and in the event of non-compliance, leave to apply for an order holding second to fifth respondents in contempt of court and authorising warrants for their arrest.
The alleged contraventions included drug dealing and prostitution.
The occupants of one flat admitted that they were employed as “escorts” but denied that they had contravened the conduct rules. They also submitted that they were not bound by the conduct rules since they had not entered into any contract which submitted them to the conduct rules.
The court found that the respondents were bound by the conduct rules in terms of the Act and that no contractual nexus was necessary.
Having found that the security register at the entrance of the building confirmed a constant flow of visitors who corroborated the admission of one of the respondents that they were “escorts”, the court pointed to the pressing social need in South Africa for sectional title owners and bodies corporate to enforce compliance with the conduct rules.
If necessary, owners and/or occupiers should be deprived of their right to reside in circumstances where there was a constant and deliberate contravention of conduct rules including the non-payment of levies.
The court then referred to the Spanish Statute on Horizontal Property, which allows a court under certain narrowly defined circumstances to deprive a troublemaker of his or her right to reside in a unit for a period of up to three years depending on the seriousness of the contravention.
It concluded, however, that there was no South African authority to authorise the granting of ejectment orders in the present circumstances. The judge stated further that, if he were wrong in his view that the court was not empowered to grant ejectment orders in the circumstances, the Body Corporate had in any event not provided a legal basis in the conduct rules for an order of eviction.
Although the application for a final interdict followed by an ejectment order in the case of non-compliance failed, the court granted a prohibitory interdict compelling the respondents to abide by the conduct rules. In the event of non-compliance the applicant was granted leave to apply for an order holding the respondents in contempt of court and authorising warrants of arrest.
In short, before a Body Corporate has the power to evict an unruly occupant, the Act or the Annexure 8 or 9 rules of the scheme must grant it such power. Until such time the only options open to the Body Corporate are to apply for an interdict or to recover fines from the offender if a suitable management or conduct rule is in place.