Dealing with absent owners

Ex-QDMS

Dr Sayed Iqbal Mohamed

Certain types of absentee owners are the reason some bodies corporate are failing. More specifically, they bring into the scheme a category of tenants who contribute to the rapid deterioration of the entire delicate fabric of the sectional titles scheme.

To understand the relationship between sectional title owners or landlords and tenants, one must first establish the various “types” of owners. We can divide sectional title owners into several categories:

1. An owner who invests for personal use and occupation. Strict adherence to the rules and maintaining “good governance” rank very highly.

2. An absentee owner who respects the rights of other owners, is a diligent levy payer and rents out to generate income. Tenants are carefully selected, directly or through an agent. As a landlord, he or she would take immediate action, even evicting a tenant for breaching the lease by, for example, committing a nuisance or overcrowding.

3. An absentee owner who is motivated by the prospects of rental income. He or she is unaware of the requirements of the Sectional Titles Act 95 of 1986 and the rules, and is primarily preoccupied by prompt and regular rental income. The “selection criteria” or choice of tenant may be mediocre. Some amount of pressure is needed to get the owner to act against his or her tenant.

4. An absentee owner who is motivated by sheer profiteering, such as an errant levy payer who is indifferent to the rights and the investment of other owners.

An absentee owner may also lease to any tenant at exorbitant rentals, often permitting overcrowding. No amount of pressure will get the owner to act against his or her tenant, who is a nuisance to other occupiers.

This category includes owners who default on bond repayments and hold on to their units as long they can to accumulate rentals.

There is a direct correlation between such owners and poor or absent internal maintenance and repair.

The greater the number of such owners, the greater the risk of services shutting down and the scheme collapsing.

Absentee owners who rent out their units may be solely motivated by income and profit. Their very absence excludes them from the lives of resident owners who then may have to endure the “bad behaviour” of certain tenants.

While there are owners who know they are subject to and bound by the rules, some absentee owners are not concerned about the need for “good governance”. Greed is inseparably linked to leasing.

What is required is the extension of the jurisdiction of the provincial Rental Housing Tribunal to include the body corporate as a party to an unfair practice.

In other words, the definition and the relevant provisions of the Rental Housing Act 50 of 1999 need to be substantially amended.

The ruling of the tribunal is not only deemed to be an order of a magistrate’s court, but is enforced in terms of the Magistrates’ Courts Act.

Since there is no charge for bringing an action through the tribunal, this would be a cost-effective means of resolving disputes and protecting the rights of all relevant parties.

An amendment of this nature should not affect owners’ rights and recourse to relief in terms of the provisions of the Sectional Titles Schemes Management Act and Community Schemes Ombud Services Act (yet to be signed into law).

The Rental Housing Act should provide for tenant conduct, allowing a body corporate to lodge a complaint against the tenant and the landlord, or may be a respondent in the event of the body corporate committing an unfair practice.

* Dr Sayed Iqbal Mohamed is chairman, Organisation of Civic Rights.

For tenant’s rights advice, contact Pretty Gumede or Loshni Naidoo at 031 304 6451.