Excessive noise, inconsiderate parking, oil stains on paving, satellite dishes put up in the wrong place, overcrowding at units, barking dogs… bodies corporate have to deal with a wide range of complaints. But when the occupier of a unit is a tenant, what is the correct procedure for dealing with complaints? Here are four key questions, along with clarifying answers.
1. 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. This is an area that highlights why it’s so important to have a good letting agent who can facilitate the process if a dispute arises.
“If the body corporate has a dispute with a tenant, it is addressed to the owner. As managing agents, we investigate the matter on behalf of the property owner, liaising with the body corporate, to understand the matter and to explore appropriate remedies, including warnings and penalties,” explains manager of the Port Elizabeth Just Property rentals business, Natasja Vincent.
Samantha Craddock of Kaplan Blumberg Attorneys, elaborates, “If the tenant does not rectify the said breach after a warning notice, the body corporate can impose a fine/penalty due each and every month, as added to the owner’s levy account, until the breach is remedied. The owner can in turn civilly recover the loss and or evict the tenant”.
2. Can a tenant be evicted or charged levies if their landlord has stopped paying them?
“No,” says Vincent. “If a landlord neglects to pay his/her levy, the body corporate cannot take action against the tenant as they are not the registered owner.” Legally, the landlord is responsible for the levies and the body corporate must take this up with the owner.
Craddock notes that as long as the tenant’s rental is up-to-date he/she is not in breach and is entitled to occupy the leased premises until the expiry of the leased term.
3. What happens if the tenant is responsible for levies in terms of his lease but neglects or refuses to pay?
A tenant cannot be charged for levies, 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.”
4. Tenants often don’t know what the rules of the body corporate are. Who is responsible for educating tenants?
“The Rental Housing Act requires a landlord of a sectional title unit who has reduced a lease agreement to writing, to attach a copy of the scheme’s rules to the lease agreement. At Just Property, we make it the managing agent’s responsibility to ensure that a copy of the rules is attached to the lease agreement when it is given to the tenant for signature,” 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 tracks agent compliance by following up with tenants after they have moved in.
They receive a detailed feedback form that includes the question “Have you received a copy of the Lease Agreement, Entry Inspection, Tenant Guide and House Rules?” immediately followed by “Were you satisfied with the handover process?”. This gives agents a mechanism to capture situations where tenants may not be properly informed about body corporate rules.
Remember, 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/she adheres to the rules. A good rental agent can help alleviate this burden by taking ownership of the responsibility to inform tenant of the rules. Being able to prove that a tenant has read and understood the rules can helps to bring clarity to dispute resolution efforts.
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Words: Just Property