I set out the background to a question of the rights of the Trustees of a body Corporate to take action to evict the Tenant of an Owner who is causing disturbances and does not abide by the Body Corporate Conduct Rules.
It would be interesting to obtain the views of the legal fraternity in such regard.
A Sectional Title Scheme of an up market Sectional Title Complex has Conduct Rules which include:
An owner or occupier of a section shall ensure that he and his visitors or guests do not make or create undue noise or cause a disturbance of any kind which directly affects his neighbours.”
“Letting of Sections
An owner of a section shall:-
1. Not enter into a lease agreement with a tenant for a period less than six months.
2. The owner of the section is to pay a deposit to the Body Corporate of R1 500 which will be held in an interest bearing account for the duration of the lease agreement. The deposit may be used at the discretion of the Trustees to rectify damage caused to the common property by said tenant.
3. An owner of a section is to supply the Managing Agent with the contact details of the tenant.
4. An owner of a section shall be obliged to notify the Trustees in writing within 14 days of the date of conclusion of a lease of his unit of the full names of his tenant and of the period of the lease.
5. An owner of a section is to supply the tenant with a copy of the Body Corporate Conduct Rules and shall be obliged to ensure that any tenant of his section or other person granted rights of occupancy by him is obliged to compy with these conduct rules, notwithstanding any provision to the contrary contained in any lease or any grant of rights of occupancy.”
The Body Corporate shall have the right to impose fines upon owners for the contravention of these rules in terms of Annexure “B”.”
This annexure provides for the method of notifying the owner and occupier of conduct which constitutes a nuisance or a disobeyance or disregard of the conduct rules, adequately describing the alleged contravention and forewarning the owner and occupier that a fine will be imposed on the section. If the owner or occupier persist in that particular conduct or contravention, the Trustees may impose a fine at a meeting of Trustees convened for that purpose. The alleged offender must be invited to the meeting and given an opportunity to present their case. Monetary Penalties are stipulated for the 1st, 2nd and 3rd offences.
Matter to be resolved
The owner of a section has let that section without complying with any of the provisions relation to “Letting of Sections” and despite written requests to do so still does not respond.
The Tenant has over a period of approximately one month caused a number of major noise disturbances which have affected the neighbours at various times. Notice of the disturbances has been served on the owner who has not responded nor remedied the complaints. The last incident occurred between the hours of 11pm on a Sunday and 3am on the Monday morning. That incident ended by the attendance of five police vehicles, two armed response vehicles, two ambulances and a paramedics vehicle, after everyone in the complex and surrounding properties had been awoken. The incident involved the consumption of alcohol and main line drugs, an attempted suicide from the seventh floor of the building, the removal of a policeman’s revolver from its holster by one of the occupants of the section, the assault of that policeman by his being hit on the head with the revolver (this has resulted in an arrest and the bringing of an attempted murder charge), shouting and screaming and general chaos.
As a result of the above, residents in the complex are not happy to have a tenant in the complex who himself or his co-residents/guests, behave in the manner they have. The complex only has one lift and there is a feeling of uneasiness among the residents to travel in the lift with the tenant and/or his guests. The use of alcohol, main line drugs and extreme rowdiness cannot continue to be tolerated.
The provisions of the Sectional Titles Act and Body Corporate Conduct Rules generally do not include any provisions which provide the Trustees with specific powers to insist upon an owner terminating a tenancy with an undesirable Tenant.
What, if anything, can the Trustees of a Body Corporate do to enforce the termination of a lease between an owner and his Tenant and thereby evict the Tenant?
First of all a summons containing an automatic rent interdict should be issued. Together therewith an application in terms of section 4 of the Prevention of Illegal Evictions Act should be issued and served on the tenant by the sheriff. Thereafter the normal civil court procedure needs to be followed in order to either obtain eviction by way of summary/default judgment or in terms of the provisions of the PIE act, as aforesaid.
The Body Corporate does not have any contractual relationship with the tenant and cannot invoke any contractual remedies against the tenant unless the rules provide for it, which must be registered in the deeds office to be properly enforceable, for a rule that the rules must form part of any lease agreement and the body corporate is mandated by the lessor to act as its legal representative in eviction proceedings. The prescribed civil proceedings will have to be complied with at all times.
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