Tenant fights back at Body Corporate denying access to flat after landlord misses levies

Pippa Hudson speaks to Consumer Journalist, Wendy Knowler about a body corporate who locked out a tenant because their landlord was behind in their levies.

If you’ve ever lived in a sectional title scheme then you’ll know that a Body Corporate is the legal body responsible for managing and administering the common property in that complex and ensuing it’s in a fit state to be enjoyed by all residents. 

They’ve been known to overstep and flex their muscles beyond their actual mandate, but Knowler's case must surely be one of the most extreme we’ve ever encountered.

Knowler says trustees of a body corporate cancelled a tenant (Yvette Olivier) who rents a unit in the Somerset Gardens development in Parklands access to her home because their landlord was behind in their levy payments - this is illegal.

Knowler took action after receiving a desperate plea for help from Olivier.

Olivier's email read: 

“Prisoners in our apartment... We are desperate! We have been renting this apartment since November 2023, paying our rent in full every month.  But yesterday, the body corporate removed our phone numbers from the access control app that allows us to enter the complex, because our landlord has not paid levies for several months." 

-Yvette Olivier

"My daughter and I can now not leave as we will not be able to come back in. My grandson, who I foster, cannot come home. We can’t buy food and we can’t order food in as we cannot open the pedestrian gate either.  We are literally prisoners in our own home. And the owner couldn’t be bothered.”

-Yvette Olivier

Olivier had also spoken to a trustee at the complex about her plight - he’d said there was nothing he could do and the rental agent said the same, as did the managing agents of the complex.  

The Rental Housing Tribunal couldn't help Yvette until Monday since she queried on a Friday.

By then Olivier had been trapped in her apartment for more than 24 hours, and her 13-year-old grandson had to spend the previous night at her sister’s home. 

Knowler called Marlon Shevelew, an attorney who specialises in rental property issues in Cape Town who advised that Olivier contact an attorney to send the trustees a letter advising them of their illegal actions, and saying if they did not restore the tenant’s access, they would lodge an urgent application with the High Court. 

And if it went to Court, the judge would order that the trustees pay their legal costs.

Knowler took Shevelew's advice to the managing agents for Somerset Gardens.

Herman Herbst, portfolio manager at Merville Properties, said the Somerset Gardens trustees had passed a resolution in 2018, allowing them to withdraw access to the tenants of owners who were in arrears with their levies.  

Knowler pointed out the illegality of that resolution and very shortly afterwards Olivier let Knowler know that her access rights to her rented property had been restored.   

But restoring Olivier's access wasn’t the end of the story.  

Knowler emailed Herbst with a list of questions for those trustees, asking them how they justified their actions, and how often that resolution had been used to lock tenants in or out of their homes in the past six years. 

The Body Corporate claims to have passed that resolution on the advice of the previous managing agent. 

'The owner in this case was informed that he still had access and could open for his tenants [by means of his cellphone, meaning he would not have to physically visit the complex to do so],' they said. 

The trustees also maintain that the purpose of their access denial 'was not to punish the tenant in any way.'

If you're in a similar situation, you might benefit from the following advice from experts:

• Tenants in Olivier’s situation could also lodge a damages claim against the body corporate for any possible damages they suffered as a result, including alternative accommodation costs. 
• While the Tribunal process is free, it takes time so be prepared for this implication.
• Body Corporates cannot take the law into their own hands - know your tenant's rights and stay protected, advises Knowler.
• Reach out to the Community Schemes Ombud Service (CSOS). The CSOS acting chief ombud, Thembelihle Mbatha says if an owner ignores a final notice to pay, trustees could  approach CSOS to recover the outstanding levies. 

'The body corporate has no legal relationship with the tenant and therefore outstanding levy amounts should not affect the tenant,' Mbatha said. 
 
But in terms of Section 39 of the CSOS Act, trustees can obtain an order compelling a tenant to pay all or part of their rental not to their landlord but to the body corporate in lieu of outstanding levies due by their landlord, until the arrears are paid up. 
 
Now that’s how to 'not punish the tenant in any way.'

At least there was a happy ending for Olivier!

Scroll up to the audio player to listen to the full conversation.