Written for Property Poser
Our Property Poser panel has been approached by the owner of a unit in a townhouse complex, who is being forced by the trustees to evict his tenant with immediate effect.
On signing the lease, the tenant told the owner that he lived in the same complex before, but did not divulge that he had previously been evicted from the complex due to alleged raucous behaviour, disrespect towards trustees and littering. Neither the trustees nor the previous letting agent informed the reader about this eviction.
The trustees demanded that the reader declare the contract null and void on the grounds that it was concluded under false pretences. The reader informed the trustees that it is impossible to do so, since the tenant had done nothing to justify an eviction.
Later the trustees claimed that the tenant more recently held a huge party that lasted into the early hours of the morning, causing serious disturbance. The tenant says he had a braai with his fellow occupants and when asked to turn down the music at around 9pm, they did so.
The reader was again asked to evict his tenant and was fined fifty percent of his monthly levy. This time the reader acceded, but the tenant indicated that he was not prepared to move.
The reader sent a letter to the trustees, telling them that they are responsible for his predicament by not informing him that his tenant was not welcome in the complex and asked for financial indemnification for any legal action as a result of the situation. The trustees replied that his request was unreasonable.
A dispute was declared by the trustees and the reader was given a two-week period to remedy the situation.
“Section 44 of the Sectional Titles Act relates to the duties of sectional title owners, one being to ensure that his or her section is not used for a purpose that will cause a nuisance to any occupier of another section,” says Liesel Greyvenstein from Greyvensteins Nortier in Port Elizabeth.
She says the fact that an owner leases his or her property out, does not take away his obligation towards the act. “If the tenant is a nuisance to other occupiers, the owner will be held accountable.”
Greyvenstein says an important clause that must be inserted into lease agreements is that the tenant will adhere to any notices of the trustees regarding unacceptable behaviour and that the owner will have the right to recoup penalties that are imposed on him or her by the trustees.
“It is also recommended that the lease agreement must stipulate that if the owner receives more than one written notice from the trustees regarding unacceptable behaviour in a specific year, that this will form grounds for the termination of the lease agreement, without any obligation on the owner to prove that the tenant did in fact contravene the rules as stipulated in the trustees’ notice.
“This will avoid the situation where the owner stands between the trustees and the tenant, who, in this case, disagree on the actual events that lead to the written notice,” says Greyvenstein.
Jaco Rademeyer from Jaco Rademeyer Estates in PE says if trustees receive complaints from occupants about a specific occupant, they are obliged to take steps to address the problem.
He says that the act stipulates that disputes between owners and the body corporate must be settled by way of arbitration. “In the reader’s case, the trustees have already served a notice of arbitration proceedings.
“If the reader feels that the trustees do not have grounds for the manner in which they are handling the situation with his tenant, then he must attend these proceedings and state his case to the arbitrator,” says Rademeyer.
“If the arbitrator’s finding is against him, the reader will have to take steps to terminate the contract, on the basis that the tenant is breaching the clause in the lease agreement that stipulates that he may not permit or cause any nuisance on the premises.”
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