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hoa levvies bbm 1 - Body Corporate or Managing Agent powers

Body Corporate or Managing Agent powers

By Marina Constas - Director BBM Attorneys

, |

Can your Body Corporate or Managing Agent switch off or reduce your electricity if you have not paid your levies? The answer is a resounding NO.

Many owners in Sectional Title buildings who are in arrears with their levies are faced with the situation where their electricity supply is unilaterally cut off by the Trustees or Managing Agent.

More recently, the practice of reducing the electricity was attempted in order to avoid court action against the Body Corporate. What can owners do in this situation? Well, the Community Schemes Ombud Service has unequivocally held that Trustees in buildings do not have the legal right to terminate or reduce electricity services UNLESS they have a court order.

The Gauteng High Court has upheld this view in the case of Claudia Niehaus vs High Meadow Grove Body Corporate. The Body Corporate is not the supplier of electricity and therefore cannot wield this type of power in the scheme. Trustees may argue that the right to terminate or reduce electricity is recorded in the rules of their building.

This type of clause constitutes nothing but a power to interfere with such person’s right to use the electricity supply.  The Community Schemes Ombud Service will not provide a compliance certificate for such a clause in the rules. An owner who faces this situation can go to Court to obtain a spoliation order which means that the Body Corporate must restore possession of the electricity back to the owner. Alternatively, an owner can approach the Community Schemes Ombud service for relief. It should also be noted that if there is a tenant in the unit where electricity is disconnected, the tenant could approach the Rental Tribunal for relief.

Make no mistake, it is very important for owners to keep up with their levy payments. The Body Corporate has every right to claim unpaid levies and can go about collecting the levies in a number of ways:  They may institute legal action and would be entitled to recover the taxed legal costs from the defaulting owner and may actually attach and sell the unit. They may also approach the Community Schemes Omud and now, with the latest legislation ,could obtain an order attaching the rental from the defaulting owner’s tenant. We also find that going the correct legal route and obtaining a Court order to disconnect electricity is productive. The law has to balance competing interests, the right of the Body Corporate to receive monthly levy payments, and the right of owners to have undisturbed, peaceful possession of their unit.

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