Rental Watch: Is it possible for a body corporate to evict a tenant?

OPINION: What legal powers would be vested in a body corporate (BC) if the owners introduced an amendment to the management and conduct rules that would provide for a direct interest and control over all leases, including the right to evict?

Under normal circumstances, a person who is not part of a contract does not have any legal right against, or an obligation to, the contracting parties. Parties to a lease contract can sue and be sued, and have a direct, mutual relationship that is referred to as privity of contract. Unless a lease is signed with the BC, there is no contractual relationship between an owner’s tenant and the BC.

The task of balancing the interests of diverse groups in a sectional title scheme is a difficult one, often daunting. There is an intense interconnectedness between the BC, trustees, owners, tenants, landlords, supervisor, managing agent, security personnel and visitors. The sectional titles scheme provides a communal environment, intersecting the divergent legal rights and duties that need to be respected, observed and discharged.

The owners’ obligations to conduct rules are carried over to their tenants. It is common practice to have “house” rules but these ought to be a summary of the conduct rules.

Conduct rules govern the relationship of all the residents and parties in a sectional title scheme as a statutory guideline for the control, administration and management of the common areas. Any amendment to the conduct rules with certain penalties, once approved by the Community Schemes Ombud Service (CSOS), is enforceable.

A well-run scheme ought to introduce or induct prospective tenants to the rules, making them fully aware of their obligations and the consequences of breaking the rules. Let us take a case where an owner has a written lease with her tenant with a copy of the conduct rules attached to the lease. The owner is a diligent levy payer and also a trustee. The tenant later disregards the rules, causing misery and nuisance to owners and other tenants. He also fails to pay his rent. The BC has no legal right to evict the tenant but fully supports the diligent owner’s effort to rid herself and the scheme of the tenant.

The owner cancels for breach, having provided the tenant ample opportunity to remedy the breach. The owner makes an application to court to have the tenant evicted, mindful of the legal and financial consequences of a quick fix action whereby resorting to self-help measures like locking out the tenant or disconnecting water or electricity supply would be counter-productive. Herein lies the inevitable long-drawn process because of the high volume of cases and more particularly the far-reaching requirements for evicting an occupier or tenant.

Just as the trustees or the BC cannot take the law into their own hands when dealing with a non-levy-paying owner, such as preventing access or illegally disconnecting services, tenants and occupiers have the same legal protection. Arbitrary deprivation of an owner’s right to possession of her or his property is now unconstitutional (s 25 (1) of the constitution) as is the arbitrary eviction of or deprivation of the right to occupy (s 26 (3)).

The 1996 Constitution has changed what was apparently a “simple” procedure to evict an occupier or tenant through its entrenched socio-economic rights provisions. Later, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) that replaced the Slums Act changed eviction procedures. The courts extended PIE to urban tenements by significantly “radicalised” procedural requirements and to some extent, the substantive requirements relating to evictions.

Eviction at common law was simple before PIE and the Rental Housing Act 50 of 1999 (the Act). The introduction of PIE and the Act in particular changed the common law position for owners/landlords whose right to be restored possession was based merely on proving ownership to have the eviction order granted (Graham v Ridley 1931 TPD 476) or, in the instance of a valid termination that was challenged, the occupier had the onus to prove an unlawful termination (Chetty v Naidoo 1974 (3) SA 13 (A)).

PIE regulates residential evictions with the exception of holiday homes (Barnet v Minister of Land Affairs 2007 (6) SA 313 (SCA)). Occupation for occasional visits based on mere convenience does not constitute a home (Beck v Scholz [1953] 1 QB 570 (CA) 575-6). Shelters for overnight accommodation and “lodgings”, on the other hand, would fall within the definition of habitable dwelling or home. Judge Lopez ordered the eThekwini Municipality to provide “temporary emergency accommodation in a location as near as feasibly possible to the area where such property is situated” to the occupiers of Durban Beach Shelter should they fail to vacate (in Morning Tide Investments 227 (PTY) Limited v Durban Beach Shelter & Ethekwini Municipality (case no. 9409/2010, Kwazulu-Natal High Court 3 May 2011).

Courts have on several occasions expanded the conditions of PIE so that the constitutional obligations of finding alternate accommodation is placed where it belongs, on the government (local authority or municipality) when a municipality acts against a private landlord even in urban localities.

Courts have also granted structural interdicts, whereby the application by a private landlord for eviction is adjourned when destitute tenants are involved. The municipality has to provide a comprehensive plan to the court under oath within a specific period, detailing how it will make resources, financial and accommodation available to house the poor tenants.

As the court challenges to evictions are steadily growing, so are the courts’ responses to the changing dynamics of a society in transformation. In Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at 237, Sachs J succinctly expresses the concerns for the poor:

The legal procedure for eviction can be slow and costly and in a BC with an abusive tenant, the challenges are even greater.

Dr Sayed Iqbal Mohamed is the chairperson of the Organisation of Civic Rights & deputy chairperson of the KZN Rental Housing Tribunal. For advice, contact Pretty Gumede or Loshni Naidoo on 031 304 6451 / pretty@ocr.org.za or loshni@ocr.org.za

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