What happens where the property being rented is in a sectional title scheme, such as a block of flats, apartment complex, etc. What is the relationship between the tenant, the landlord and the body corporate? And in particular, what happens when a dispute occurs, such as non-payment of utilities, or a breach of the building’s rules.
I.E. Who is ultimately responsible?
Let’s start with the definitions:
- “the tenant” is the lessee of a property being leased by a landlord.
- “the landlord” is the owner of the property being leased, including his or her duly authorised agent or a person who is in lawful possession of the property and has been given the right to lease or sub-lease it.
- “the body corporate” is the collective name given to the owners of the units and common property within a sectional title scheme. All owners jointly own the land itself as well as all the common property, e.g. staircases, corridors, communal washrooms, driveways, recreation facilities, entrances, etc. Importantly, each unit has its own legal title, which is transferable. Thus, the owner has exclusive ownership rights over his or her particular sectional title (property unit).
- “the trustees” are the people who are appointed to administer the finances and running of the sectional title scheme on behalf of the body corporate.
The tenant-landlord-body corporate relationship
There is clearly a legal relationship between the tenant and the landlord arising from the lease agreement, which is governed primarily by the Rental Housing Act 50 of 1999, as amended. There is also a legal relationship between the landlord and owner of the property with the body corporate of the sectional title scheme.
But, what about the tenant and the body corporate?
Essentially, there is effectively no direct legal relationship between the tenant and the body corporate. South African sectional titles legislation concentrates firmly on the relationship between owners and bodies corporate.
This means that tenants deal with their landlords (or their appointed rental agents) directly, and not with the trustees of body corporates. Consequently, owners are ultimately responsible for their tenants.
What happens when a dispute arises?
What, then, is the correct procedure for dealing with complaints about a tenant occupying a unit in the sectional title scheme? If the body corporate has a dispute with a tenant, it is addressed to the owner/landlord. If the tenant does not rectify the cause of the complaint after a warning notice, the body corporate can impose a fine or penalty, however, this fine is added to the owner’s levy account.
The owner may, in turn, recover this from the tenant through a civil claim and may have grounds to cancel the lease agreement due to breach and evict the tenant.
Turning to eviction, can a tenant be evicted or charged levies if their landlord is in arrears with their levies or utilities. No! If a landlord neglects to pay his or her levy, the body corporate cannot take action against the tenant, as they are not the registered owner. Legally, the owner is responsible for the levies and the body corporate must pursue the claim against the owner solely.
What if the lease agreement provides that the tenant will be responsible for levies, utilities, etc.?
Still, no. A tenant cannot be charged for levies. The tenant may be invoiced for amounts billed by the body corporate for utilities, garden service and/or any such charges if provided for in the lease agreement. However, the owner remains ultimately responsible, as this is in his or her own account.
There are two separate linear relationships, not one triangular one. A relationship between the body corporate and the owner/landlord. Another between the landlord and the tenant.
Essentially, the body corporate deals directly with the owner, who is ultimately responsible for his or her unit and the occupant(s) thereof. The tenant deals directly with the landlord or their duly appointed rental agent, and not with the body corporate.