The body corporate is made up of the owners of units in a sectional title scheme. Not all owners occupy their units – some owners rent their units out to tenants. A tenant is not a member of the body corporate, but is a member of the community. They should adhere to the same rules that deal with occupation issues, for example the rules relating to the keeping of pets; parking vehicles on common property; and noise and nuisance provisions.

The lease agreement establishes a contractual relationship between the tenant and landlord. Section 5(8) read with section 5(9) of the Rental Housing Act 50 of 1999 requires that the landlord must ensure that a copy of any House Rules applicable to a dwelling must be attached as an annexure to the lease. The Rental housing Act defines “House Rules” to mean the rules in relation to the control, management, administration, use and enjoyment of the rental housing property. In the context of sectional titles this will include the management and conduct rules in terms of section 35(2) of the Sectional Titles Act 95 of 1986 (“the Act”).

The rules of the scheme therefore need to bind owners and occupants (tenants). The trustees and managing agent must ensure compliance with the scheme rules. Ultimately the owner is responsible for the actions of his tenant. This can be supported by section 35(4) of the Act

“The rules… shall bind the body corporate and the owners of the sections and any person occupying a section.”

Furthermore, PMR 69 states that:

“The provisions of these rules and of the conduct rules, and the duties of the owner in relation to the use and occupation of sections and common property shall be binding on the owner of any section and any lessee or other occupant of any section, and it shall be the duty of the owner to ensure compliance with the rules by his lessee or occupant, including employees, guests and any member of his family, his lessee or his occupant.”

The imposition of a duty on owners to “ensure compliance” with the rules has been interpreted as the imposition of a strict and “no-fault” liability which implies that the body corporate can fine and otherwise act against an owner on account of the actions of a tenant, the tenant’s family, guests, employees or invitees and anyone else who is allowed onto the scheme by anyone who can be linked to an occupier of the section.

Prescribed Conduct Rule 10 also states that:

“All tenants of units and other persons granted rights of occupancy by any owner of the relevant unit are obliged to comply with these conduct rules, notwithstanding any provision to the contrary contained in any lease or any grant of rights of occupancy.”

Notwithstanding the fact that section 44(1)(f) of the Act imposes an obligation on the owner of a unit to notify the body corporate when he or she deals with the unit, owners seldom give bodies corporate details of their tenants. Furthermore, few landlords attach a copy of the scheme’s conduct rules to the lease. The trustees and managing agents will have to monitor the identity of the occupants in a scheme and ensure that they are given a copy of the scheme rules which they are obliged to abide by.

Article reference: Paddocks Press: Volume 09, Issue 11, Page 5.

Image reference: www.keepcalm-o-matic.co.uk

Carryn Melissa Durham is a Specialist Sectional Title Lawyer (B.A LL.B, an LL.M), currently completing her Doctorate in sectional titles. Carryn heads up the Paddocks Private Consulting Division. For more information please contact Nicole on 021 686 3950 or consulting@paddocks.co.za.

This article is published under the Creative Commons Attribution license.

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