The owner of a property does not have absolute right to do as he or she pleases, being subject to municipal by-laws, and neighbourhood and other laws.
CONSUMER: The owner of a property does not have absolute right to do as he or she pleases, being subject to municipal by-laws, and neighbourhood and other laws.

Similarly, a tenant has limited real rights during the lease period and cannot do as he or she pleases. The limited real rights also prevent the landlord or owner from gaining access to the property, unless there is a valid legal reason.

This does not mean that the tenant can do as he or she pleases. A tenant will need permission from her landlord if she intends to make certain changes, such as installing burglar bars or a security gate to the door.

In a sectional title scheme, each owner has absolute right of ownership over his or her unit or section, like the ownership rights and powers of the owner of a house built on a separate piece of land. Each owner has the right of use and enjoyment over his or her unit and mutual rights over common areas. The right of use and enjoyment of the owner’s unit is, however, restricted by the rights of the other (co)owners in terms of the common law.

There are other restrictions that come about because of other real rights, restrictive conditions in the sectional plan, existing servitudes, and restrictions imposed by the Sectional Titles Act. The owner may be held liable for any violation by her tenant or occupant of the management and conduct rules.

In terms of the Sectional Titles (the Sectional Titles Schemes Management Act 8 of 2011) prescribed conduct rule 4 (damage, alterations or additions to the common property), an owner’s rights in a sectional titles scheme are restricted and subject to obtaining written approval from the trustees:

(1) An owner or occupier of a section shall not mark, paint, drive nails or screws or the like into, or otherwise damage or alter, any part of the common property without first obtaining the written consent of the trustees.

(2) Notwithstanding sub rule (1), an owner or person authorised by him may install:

(a) Any locking device, safety gate, burglar bars or other safety device for the protection of his section; or (b) any screen or other device to prevent the entry of animals or insects; provided the trustees have first approved in writing the nature and design of the device and manner of its installation.

What happens if an owner disregards this rule and installs a security gate to the front door?

In the Body Corporate of Fascadale Heights v Bayne and Others (2907/13) [2013] ZAKZDHC 43 August 28, 2013), parties presented a voluminous set of documents (250 pages) dealing with legal costs. The costs related to the main application brought by the Fascadale Heights body corporate (BC) as a matter of urgency to compel three owners (two were co-owners of one unit) to remove security gates from their units within seven days.

On January 29, 2013, the BC asked the owners to remove the gates because of a pending withdrawal of the insurance cover. On February 26, 2013, the chairperson did not allow David Leslie Graham Bayne, the first respondent’s “employee” to remove the gate because he did not have written consent authorising him to act for the owner. The other owner asked for an extension and indicated the gate would be removed by the middle of April 2013. (Bayne’s security gate was installed 10 years earlier by the previous chairperson who owned the unit.)

The BC brought an urgent application, serving notice on the owners on Saturday, March 16, 2013, notifying them that the matter would be heard before a judge the following Monday. The owners removed the gates and informed the BC’s attorneys.

The Fascadale Heights case was heard on the August 26 regarding the legal costs for the main (urgent) application of March 18, 2013. Judge Graham Lopes criticised the attorneys for not agreeing on costs and blamed both sides for the application and for the unnecessary legal costs.

Instead, he ordered each party to pay its own legal costs.

“Having considered the conduct of the parties in this matter, and in the exercise of my discretion with regard to the award of costs, I take the view that the applicant should not have brought the application out of normal court times, and on such short notice to the respondents. If it had wished to bring such an application, it should have afforded the respondents more notice. The reasons for not doing so are but poor excuses for not having given proper notice.

“The respondents are not, however, blameless. They reacted slowly to the request by the body corporate that they remove the gates within seven days, failing which the insurance policy on the building would be jeopardised. In addition, once the order had been granted, they filed affidavits which do not entirely excuse their delay in not having had the gates removed timeously. It was clear the gates had to be removed, something eventually accepted by the respondents.”

Similar “rules” would apply to a lease agreement when the tenant is not allowed to make changes to the property. The tenant must request permission in writing from the landlord to install burglar bars, make alterations, carry out repairs or install any fixture.

A tenant who carries out extensive repairs to the plumbing without the landlord’s permission would be in major breach.

Respecting and adhering to compulsory rules and laws can preserve harmony. Prompt action to remedy a default or “deviation” can prevent an acrimonious relationship and a simple dispute turning into a costly legal battle. Failure to adhere to the terms of the lease agreement may result in a breach with serious consequences.

Dr Mohamed is chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. For advice call Pretty Gumede or Loshni Naidoo on 0313046451/[email protected] or [email protected]

Daily News