By Sayed Iqbal Mohamed

Sayed Iqbal MohamedWhat legal powers would be vested in a body corporate if the owners introduce an amendment to the management and conduct rules that would provide for a direct interest and control over all leases, including the right to evict?

Under normal circumstances, a person who is not part of a contract does not have any legal right against, or an obligation to, the contracting parties. Parties to a lease contract can sue and be sued, and have a direct, mutual relationship that is referred to as privity of contract. Unless a lease is signed with the BC, there is no contractual relationship between an owner’s tenant and the BC.

The task of balancing the interests of diverse groups in a sectional titles scheme is a difficult one, often daunting. There is often an intense interconnectedness between the BC, trustees, owners, tenants, landlords, supervisor, managing agent, security personnel and visitors. The sectional titles scheme provides a communal environment, intersecting the divergent legal rights and duties that need to be respected, observed and discharged.

The owners’ obligations to conduct rules are carried over to their tenants. It is common practice to have “house” rules but these ought to be a summary of the conduct rules since there is no basis for house rules in the Sectional Titles Act [1].

Conduct rules govern the relationship of all the residents and parties in a sectional title scheme as a statutory guideline for the control, administration and management of the common areas
. It is enforceable with certain penalties, if so amended and lodged with the deeds office in the province.

In the instance where a tenant in an adjoining property is abusive, flouting the city bylaws by causing a disturbance, the aggrieved owner cannot evict the neighbour’s tenant. Take this situation into a sectional titles scheme where certain provisions of the law of persons may not apply because of the STA [2], the BC is powerless against the abusive tenant.

A well-run scheme ought to introduce or induct prospective tenants to the rules, making them fully aware of their obligations and the consequences of breaking the rules. Let us take a case where an owner has a written lease with her tenant with a copy of the conduct rules attached to the lease. The owner is a diligent levy payer and also a trustee. The tenant later disregards the rules, causing misery and nuisance to owners and other tenants. He also fails to pay his rent. The BC has no locus standi to evict the tenant but fully supports the diligent owner’s effort to rid herself and the scheme of the tenant.

The owner cancels for breach, having provided the tenant ample opportunity to remedy the breach. The owner makes an application to court to have the tenant evicted, mindful of the legal and financial consequences of a quick fix action whereby resorting to self-help measures like locking out the tenant or disconnecting water or electricity supply would be counter-productive. Herein lies the inevitable long-drawn process because of the high volume of cases and more particularly the far-reaching requirements for evicting an occupier or tenant.

Just as the trustees or the BC cannot take the law into their own hands when dealing with a non-levy-paying owner, such as preventing access or illegally disconnecting services, tenants and occupiers have the same legal protection. Arbitrary deprivation of an owner’s right to possession of her or his property is now unconstitutional (s 25(1) of the constitution) as is the arbitrary eviction of or deprivation of the right to occupy (s 26(3)).

The 1996 Constitution has changed what was apparently a “simple” procedure to evict an occupier or tenant through its entrenched socioeconomic rights provisions. Later, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) that replaced the Slums Act changed eviction procedures. The courts extended PIE to urban tenements by significantly “radicalised” procedural requirements and to some extent, the substantive requirements relating to evictions.

Eviction at common law was simple before PIE and the Rental Housing Act 50 of 1999 (RHA). The introduction of PIE and the RHA in particular changed the common law position for owners/landlords whose right to be restored possession was based merely on proving ownership to have the eviction order granted (Graham v Ridley 1931 TPD 476) or, in the instance of a valid termination that was challenged, the occupier had the onus to prove an unlawful termination (Chetty v Naidoo 1974 (3) SA 13 (A)).

PIE regulates residential evictions with the exception of holiday homes (Barnet v Minister of Land Affairs 2007 (6) SA 313 (SCA)). Occupation for occasional visits based on mere convenience does not constitute a home (Beck v Scholz [1953] 1 QB 570 (CA) 575-6). Shelters for overnight accommodation and “lodgings”, on the other hand, would fall within the definition of habitable dwelling or home. Judge Lopez ordered the eThekwini Municipality to provide “temporary emergency accommodation in a location as near as feasibly possible to the area where such property is situated” to the occupiers of Durban Beach Shelter should they fail to vacate (in Morning Tide Investments 227 (PTY) Limited v Durban Beach Shelter & Ethekwini Municipality (case no. 9409/2010, Kwazulu-Natal High Court 3 May 2011).

PIE brought about changes whereby courts orders and judgments grant evictions that are just and equitable to do so, after considering:
•    all the relevant circumstances
•    the rights and needs of the elderly, children, disabled persons and households headed by women

PIE requires a landlord to establish and disclose the circumstances of the tenant to be evicted
. The summons or application seeking to evict must have a separate part to it in which such a disclosure is made and served on the tenant. The court has to grant the PIE application first before the landlord can proceed with the main summons or application for eviction. PIE and the main application for eviction must also be served on the municipality in which the tenant resides. Courts have on several occasions expanded the conditions of PIE so that the constitutional obligations of finding alternate accommodation is placed where it belongs, on the government (local authority or municipality) when a municipality acts against a private landlord even in urban localities.

Courts have also granted structural interdicts, whereby the application by a private landlord for eviction is adjourned when destitute tenants are involved. The municipality has to provide a comprehensive plan to the court under oath within a specific period, detailing how it will make resources, financial and accommodation available to house the poor tenants.

The growing jurisprudential demands on government have ensured that local authorities are the points of service delivery. They are required to:
•    Provide suitable alternative accommodation to evictees
•    Engage meaningfully with occupants facing evictions
•    Present courts with detailed plans for relocation

As the court challenges to evictions are steadily growing, so are the courts’ responses to the changing dynamics of a society in transformation. In Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at 237, Sachs J succinctly expresses the concerns for the poor:

“Thus, PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves.”

The legal procedure for eviction can be slow and costly and in a BC with an abusive tenant, the challenges are even greater.

[1] Mohamed, S.I. ‘House reules’ being used to bypass law: Insistence on compliance with ‘voluntary’ measures’ 10-08-2010 Daily News
[2] Cassim v Voyager Property Management (Pty) Ltd (574/10) [2011] ZASCA 143 (23 September 2011)

Article reference: Paddocks Press: Volume 6, Issue 2, Page 3

Sayed Iqbal Mohamed is the chairperson; director of projects: Organisation of Civic Rights.

This article is published under the Creative Commons Attribution license

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