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Tenants get their teeth

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Marina Constas, director BBM Inc Attorneys, discusses why the tenant in a sectional title scheme will very soon have rights, a voice and be able to contribute to the management of the estate.

The oft-vilified tenant in a sectional title scheme can rest easy in the knowledge that things are looking up regarding his rights with the body corporate.

It is undoubtedly true that trustees representing every scheme with which I have had the occasion to work, at some stage bemoan the “tenant situation” in the building. It is unfair to attribute the “weakest link” theory to every tenant. In fact, I have come across many tenants who conversely, and in many instances, justifiably, complain about the lethargy of the trustees in dealing with the daily operational management of the complex.

Tenants, have in many instances stood up to the plate, taking a real interest in the scheme, with certain individuals going as far as to stand as trustees. This is allowed, except for where the majority of trustees are not owners.

Of course, it would not be unusual for trustees to say that the laws in South Africa surrounding the landlord-tenant relationship have not levelled the playing fields between the two parties, but have in fact tipped the scales substantially in favour of the tenant.

We all know how difficult it is to remove a recalcitrant tenant. Possession, correctly stated, is after all, nine tenths of the law. This may be all very well and good, a tenant might say, but currently as it stands in the Sectional Title Act, there is no legal relationship between the body corporate and the tenant.

This “state of invisibility” attributed to the tenant could be viewed as unreasonable and naïve. The argument may be that tenants should be embraced by the body corporate, and be brought into the fold as active participants instead of as non-entities.

Perhaps the legislators bore this rationale in mind when drafting the Community Scheme Ombudsman Services Act. This long-awaited act, although promulgated in 2011, has yet to become effective. The regulations to the act must first be published, which publication we believe is imminent. In the interim, and in preparation for the implementation of the act, an Ombudsman has been appointed, and has set up offices in Johannesburg, Durban and Cape Town. The teams at the respective offices are currently mediating disputes, and will only be able to adjudicate such disputes once the act becomes effective.

I can see managing agents rolling their eyes at this one. Let’s just say that the number of disputes is bound to rise as tenants will have an outlet to express any frustrations they may have with the trustees, or with other owners.

In certain overseas jurisdictions, tenants have acquired “ad hoc” voting rights if they have lived in a complex for over a certain number of years. Insofar as trends go, we can identify this increase in tenant power as a reality.

Interestingly in the amendments to the South Australian Residential Tenancies Act of 1995, which were due to become effective early this year, the aforementioned trend is evident.

The amendments state that landlords have to provide operating manuals to the tenant for every electrical item in the home. This would include dishwashers, retractable blinds, entertainment systems, smoke detectors, and so on and so forth.

Quite frankly, if I were a tenant, I would not care one way or another if I had access to an operating manual. I have yet to read one that I understand, but there you have it. In addition, landlords must provide tenants with seven to 10 days notice before entering the home, and will be registered to take greater care in blacklisting them legally.

Yes indeed, the tenant, a role player among the cast of characters in a sectional title complex, will be placed a little closer to the foreground of the stage in the not-too-distant future. Hopefully he will be alive to the fact that he too must play his part well, and be mindful of his reciprocal obligations.

 

Who is Marina Constas?

Marina Constas, director at BBM Attorneys

Marina Constas, director at BBM Attorneys

Marina Constas is a well-known personality in sectional title circles. She is a specialist sectional title attorney, and director at BBM Inc Attorneys. Marina is a Fellow of the Association of Arbitrators, and a qualified International Mediator. On a personal level, as MD of an online website linking teenagers to community service opportunities, she loves working on social initiative projects and recently received the LEAD SA Hero of the Month for March 2015. Her latest accolade is an award for excellence in law from the Lyceum Greek Women’s Council.

 

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