The ten­ant-land­lord-body cor­po­rate tri­an­gle must be man­aged with care

Weekend Argus (Saturday Edition) - - PROPERTY - SATUR­DAY AN­TON KELLY

MANY sec­tional ti­tles units are bought as in­vest­ments and oc­cu­pied by ten­ants.

Nor­mally, the lease of a prop­erty gives rise to two re­la­tion­ships: the re­la­tion­ship be­tween the land­lord and the ten­ant, and the re­la­tion­ship be­tween the ten­ant and the leased prop­erty. How­ever, when the lease is of a sec­tional ti­tle prop­erty, a third re­la­tion­ship ex­ists: the re­la­tion­ship be­tween the ten­ant and the body cor­po­rate.

The first two re­la­tion­ships are of­ten fairly well un­der­stood. Es­sen­tially, the ten­ant must pay the rent and not dam­age the prop­erty while the land­lord must make sure that the prop­erty is main­tained. A ten­ant is not en­ti­tled to with­hold the rent even if the land­lord fails to main­tain the prop­erty. The land­lord can’t just evict the ten­ant, for what­ever rea­son. An evic­tion has to be au­tho­rised by a court or­der. Th­ese re­la­tion­ships are well de­fined in the Rental Hous­ing Act.

The re­la­tion­ship be­tween the ten­ant and the body cor­po­rate is in­ter­est­ing be­cause de­spite its im­por­tance, it is not nearly as clearly de­fined as the other two re­la­tion­ships in a te­nancy. On the one hand, the lease is a con­tract be­tween the ten­ant and the owner of the sec­tion and has noth­ing to do with the body cor­po­rate. On the other hand, the ten­ant lives in the scheme and in day-to-day liv­ing has more or less the same ef­fects on the scheme as an owner would.

Like an owner, a ten­ant is bound by the rules of the scheme. While it is the duty of the body cor­po­rate to en­force the rules, own­ers also have the duty of en­sur­ing that their ten­ants com­ply with the rules. The ques­tion is, from a prac­ti­cal point of view, do the trus­tees deal di­rectly with the ten­ant if there is a breach of the rules, or do they deal with the land­lord?

It’s best for the trus­tees to deal di­rectly with the ten­ant, at least ini­tially, for two rea­sons:

Un­less it has gone sour, the re­la­tion­ship be­tween the land­lord and the ten­ant is sym­bi­otic in na­ture. The land­lord has a ten­ant and a rental in­come, and the ten­ant has a place to live that is some­one else’s re­spon­si­bil­ity. They want to pre­serve that re­la­tion­ship, and so are likely to join forces against the trus­tees.

Sec­ond, al­though much more dif­fi­cult than us­ing a third party to de­liver an un­pleas­ant mes­sage, it is usu­ally more ef­fec­tive to ap­proach the ten­ant in per­son, in a po­lite and non-con­fronta­tional man­ner. A re­spect­ful dis­cus­sion of the mat­ter, lis­ten­ing to the rea­son the ten­ant broke the rule, pro­vides the best chance of ad­dress­ing the fun­da­men­tal is­sue that led to the rule be­ing bro­ken in the first place.

Visit rather than write. And if the breach of rules con­tin­ues, write be­fore pres­suris­ing the owner to take dras­tic ac­tion.

An­ton Kelly is the course in­struc­tor of the Univer­sity of Cape Town ( Law@ Work) sec­tional ti­tle meet­ings short course. The next course starts on July 22. Call Emma on 021 447 4130, e- mail emma @ pad­docks. c o. z a o r vi s i t www.Pad­

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