Legal Articles

Body Corporates often find themselves stuck between a rock and a hard place when unit owners in sectional title schemes accrue huge arrears pertaining to levies and utilities. It is usually not an easy task to decide on what the most appropriate course of action should be in such a scenario. In this article, we shall share a few principles that Body Corporates ought to be aware of. Seeking the assistance of a legal practitioner who is well acquainted with the legal mechanisms that may be taken to recover the arrears to bring the accounts up to date is highly advisable.  

We need to mention that the law discourages “self-help” actions, whereby a party resorts to action that is unlawful. This is for obvious reasons, it is meant to prevent anarchy in society (so-called survival of the strongest). The law views legal subjects equally and therefore the fact that one party wronged the other first, then the other party took the matter into their hands is not a sustainable defence. The law is fraught with legal mechanisms that parties whose rights have been infringed or who have suffered loss in one way or the other may use to seek relief.

What Happens if Levies are not Paid?

The Trustees of a Body Corporate are entitled to launch legal action where the unit owner is not honouring their obligations towards utility accounts and levies. Incidentally, the entitlement flows from section 4 (1) of the Sectional Titles Schemes Management Act 8 of 2011, and Prescribed Management Rule 25.

With hindsight of cases that have been brought before our courts such as Lion Ridge Body Corporate v Alexander; Lion Ridge Body Corporate v Morata; Lion Ridge Body Corporate v Mukona and Another (17074/2022; 18106/2022; 19220/2022) [2022] ZAGPJHC 713 (21 September 2022) and Anva Properties CC v End Street Entertainment CC, the Courts are willing to listen to an applications for arrears and the termination of services. However, each case is decided on its merits.

In the same vein, because court action is usually a tedious process, Body Corporates usually take the matter to court after several notices have been sent to the defaulting unit owner. Some unit owners consistently default in paying towards levies and utility accounts, leaving the Trustees of the Body Corporate with no choice but to resort to court action in order to recover the arrears. It must be realised as well that in the running of the Body Corporate and its affairs, the Trustees are faced with a huge burden to ensure that the scheme is well equipped and has the resources that it requires to function properly. Therefore the incidence of having some unit owners defaulting on levies and utility accounts whilst they are still enjoying the services places a huge burden on the financial affairs of the Body Corporate, a situation which is both untenable and unstainable in the long run.

Upon the court issuing an order, the Sheriff of the Court will then proceed to disconnect services of the defaulting owner. This places the Body Corporate and the Trustees in a legally sound position because the process has been done through legal means, and therefore will not invite a spoliation application by the unit owner had the Body Corporate disconnected the services without a Court order.

Van Deventer & Van Deventer Incorporated  - Property Law Attorneys South Africa

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