Two sons were the bare dominium owners of a flat in which the lifelong usufruct had defaulted on arrear levies and disappeared. The body corporate sought advice on who it should sue, as the two sons disputed liability on the basis of the judgment in Ex Parte Standard Bank Ltd: In Re Estate Rodger 1963 (3) SA 683 (SR).
Management r 31(5) read with s 37(1) and (2) of the Sectional Titles Act 95 of 1986 (the Act) stipulates that:
'An owner shall be liable for and pay all legal costs, including costs as between attorney and client, collection commission, expenses and charges incurred by the body corporate in obtaining the recovery of arrear levies, or any other arrear amounts due and owing by such owner to the body corporate, or in enforcing compliance with these rules, the conduct rules or the Act' (my emphasis).
The definition of "owner", in terms of the Sectional Titles Act 95 of 1986, does not include only the person registered as owner but also the person registered as holder of a sectional title unit, such as a usufructuary. In Ex Parte Standard Bank Ltd: In Re Estate Rodger 1963 (3) SA 683 (SR), the registered usufruct was held liable for the rates and taxes of a full title property despite the applicable legislation providing for the 'owner' to be held liable.
The writer submits that the above judgement is correct with the usufruct enjoying the use and fruits of the property and should be applied to sectional title property as the current situation is frustrating for bodies corporate who battle to collect outstanding levies.
De Rebus website
Liability of a usufructuary
Reader Comments:
It would appear that for the above case, the rates and taxes were included in the levy? These days the rates and taxed are charged separately from the levy as far as sectional tiles are concerned. What would happen if a usufruct would pay the rates and taxes, but not the levies? A far as I know insurance on the building, capital improvements/restructuring like a new roof etc. and normal wear and tear because of daily use are all included in levies for convenience sake by body corporates, yet these expenses are NOT the responsibilities of usufructs. To argue that it could be reclaimed from the bare dominium owner is absurd. I know of a case where the bare dominium flatly refuses to reimburse the usufruct after the usufruct settled these expenses. How fair is that?
Hi, Peter. I think you misread the description of the case quoted. The usufruct was held liable for the rates and taxes of a full title property . . . not a sectional titles property. The writer is suggesting that this judgement would apply mutatis mutandis to payment of levies in a sectional titles scheme.
Anne I fully concur.
I have read this series of articles with interest, but my comments here are limited to the language used. The right held is a usufruct. The person who holds the right is the usufructuary. The person who owns the balance of the rights of ownership is the bare dominium owner and the rights he holds are the bare dominium. The use of the correct terminology may help to reduce confusion. Donald Moore.
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