What are the implication of the trustees of the Body Corporate blocking certain members of the Body Corporate from certain facilities.
FACTS TO BE ESTABLISHED:
Do the trustees have the authority to take the law into their own hands and interfere with an owner of a unit in the Body Corporates right to the full enjoyment of the property and the amenities going with same, on the basis that the owner is in arrears with their levies and ancillary charges.
This is a frequent issue the trustees of body corporates have to regularly deal with. The difference in outcomes is the way in which the defaulting owner is treated, and the outstanding debt collected. Some owners in a scheme will consider the amounts due to the Body Corporate as an optional expense. The more the owner gets away with defaulting the more often they will most probably default and influence other owners. The quicker the trustees take control of the situation the better for the future for the Body Corporate.
The monthly levy is so carefully calculated prior to the annual general meeting in order to be the minimum amount possible, in an attempt to accommodate the owners, yet some owners will take this for granted.
Non-payment or partial payment places an enormous burden on the remaining members of the Body Corporate to cater for them, inter alia, municipal consumption and common area electricity usage, security, and general upkeep of the property.
Many trustees and managing agents, in order to recover outstanding amounts, revert to taking the law into their own hands by interfering with the facilities to such members’ sections or units. Some have even passed rules which allow for such actions but same are legally sound or will stand in court. Such trustees and managing agents expose themselves and the trustees in their personal capacity, to an application by the owner and/or the occupier, against the spoliation of such services, or access with a court order for immediate rectification with a cost order against the Body Corporate.
The Sectional Titles Schemes Management Act clearly stipulates that trustees must approach by action any court, including the Magistrate’s court, for recovery of any and all contributions levied under the provision of the Act.
The best plan of action is to take immediate action against an owner who is in default. By delaying the collection process the outstanding levy account increases exponentially, together with the burden on paying owners.
The illegal disconnection of electricity to a unit by a body corporate was dealt with by the High Court in the case of Queensgate Body Corporate v Claassen (A3076_98)  ZAGPHC 1 (26 November 1998).
The court confirmed the scope of spoliation as was summarised in Nino Bonino v De Lange 1906 TS 120 at 122 where Innes, CJ said:
“It is a fundamental principle that no man is allowed to take the law into his own hands. No one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property whether movable or immovable. If he does so the court will summarily restore the status quo ante and will do that as a preliminary to any enquiry or investigation into the merits of the dispute. It is not necessary to refer to any authority upon a principle so clear.”
The body corporate’s legal representatives argued that the act was taken in accordance with the scheme’s rules, duly made under the Sectional Titles Act. This argument was held to be without merit. The court said:
“The clause giving the appellant the right to cut off electricity of any unit owner who is in arrears with his or her levies is clearly contrary to the common law. It constitutes nothing but a power to interfere with such person’s right to use the existing electricity supply. The instant case is an a fortiori example of spoliation. … no court would have had the power to deprive any holder of his or her electricity supply in the circumstances the appellant has done. It is a clear act of spoliation and there was no consent valid in law to such an act.”
A further case regarding lease particularly but the facts are relevant.
The tenant of four sets of commercial premises allegedly:
-Failed to honour an acknowledgment of debt (presumably for rental arrears), and
-Sub-let a portion to some 150 people as accommodation without the landlord’s permission
The landlord put a lock on the entrance gate to deny access to the units. Thereafter, the tenant immediately approached the Court for relief. To understand the outcome we need to understand how our law views the whole question of “self-help law”.
The trustees cannot interfere with facilities which the member is entitled to without either a statutory right to do so or an order of court authorising same. It is illegal to “take the law into your own hands” in an attempt to force owners to pay outstanding levies. This is an act of “spoliation”. Taking the law into your own hands you immediately put yourself, your fellow trustees and the managing agents in the wrong and can land in all sorts of trouble with unnecessary delays, extra legal costs, perhaps even a damages claim. To succeed in obtaining a spoliation order, the member needs to prove only two things –
1. That he/she was “in peaceful and undisturbed possession of the disputed facility” and
2. That he/she was “deprived of that facility without consent or recourse to law”.
In other words, no matter how strong your case against your member may be, a court will without further ado order you (in the form of a “spoliation order”) to allow the member access to the facility again. It won’t enquire into whether the member’s right to same is wrongful or illegal, nor will it enquire into your respective legal rights. Those enquiries only come later, when you follow due process.
The correct procedure will be one of the following:
- Proceed to collect the debt with a competent attorney;
- Approach the High Court for an order permitting you from terminating various services to the member. This can be in the form of electricity, remotes or other.