RENTAL WATCH: WHEN a party such as a landlord, body corporate, supervisor or letting agent disconnects or restricts access to water and electricity, the tenant or occupier can bring an urgent court application. This common law remedy, an interdict, is based on the mandament van spolie, or an order of court, to undo the spoliation or unlawful act.
If the magistrate or judge is satisfied that the action was unlawful, an interim order is granted. Parties are given a return date to appear in court, to have the order confirmed, and therefore make a final order. The respondent (such as a landlord) can challenge the order to have it discharged. Similar procedure is followed by the Rental Housing Tribunals in granting a spoliation order.
The respondent, as the party that caused the alleged unlawful act, has the opportunity to present evidence that there was no unlawful action. An example is proof that the services were disconnected by the municipality because the tenant tampered with the water or electricity meter. In most instances, the court or the tribunal would confirm the interim order because no one is allowed to break the law by resorting to self-help tactics.
There are situations when a tenant accepts rules with the lease agreement, and he or she and the owner are bound by it. Would the court allow the disconnection of electricity or services to be restricted if parties have agreed? The agreement relates to a rule of the homeowners’ association, that allows it to invoke this power in the event an owner fails to pay levies or penalties. It further binds the owner’s tenant for the owner/landlord’s failure or infringement of the homeowners’ association rules.
The High Court in Free State province confirmed such a rule is binding on the owner and her or his tenant.
What would be the court’s response to a situation, where an owner has agreed to have services restricted for failing to pay levies to the homeowners’ association (HOA)? This agreement is then included in a lease contract with the tenant, binding the tenant to the same consequence for the owner’s levy arrears. On the face of it, the tenant will be granted a spoliation order if the services are restricted. What would happen if the HOA challenges the interim order, on the basis that it has the legal right to restrict or deny these services?
HOA have multiple owners, but each owner has a full title registered with the deeds office for a conventional property. Each owner is a member of the association, which may be a section 21 company or established in terms of a municipal ordinance.
In the case of Van Rooyen v Hillandale Homeowners Association [2015] JOL 33597 (FB), the rules of the association that allowed it to restrict water and electricity were found to be lawful and binding on the owner and the tenant. Van Rooyen entered into a lease agreement with Sue Celken Family Trust (the Trust) in November 2012, taking occupation of a property at 15 Wildehond Street, Woodland Hills Wildlife Estate, Bloemfontein. The Hillandale Homeowners Association (HHA), a non-profit company, was responsible for governing, administering and managing the estate by promoting, advancing and protecting the communal interests of its members.
The Trust failed to pay certain penalties/levies charged for its failure to adhere to aesthetic rules. This affected Van Rooyen’s water and electricity because he was restricted to the number of units he could purchase from the HHA for the prepaid water and electricity vouchers. Eventually, he had no access to the HHA’s internet site to purchase the vouchers.
On April 8, 2014, Van Rooyen obtained an urgent interim court order against the HHA to restore, without delay, access to its internet site to be able to purchase prepaid water and electricity. On the return date, Van Rooyen wanted the court to confirm the interim order, but the respondent, the HHA, challenged it to have it discharged.
The HHA argued that it was within its legal rights to restrict the services to the Trust’s property, in terms of rule 13.11 of the Manual for Community Participation. This rule provided that the HHA can refuse the provision of electricity to any occupier or owner of any erf, in respect of which levy payments are outstanding for a period of 60 days or longer, until such time as all outstanding levy payments are paid in full.
In terms of its Memorandum and Articles of Association, every member (owner) is bound by the rules or regulations. No member/owner “shall let or part with the occupation of his residence, whether temporarily or otherwise, unless the proposed occupier has agreed to be bound by all the provisions of the rules. Such an occupier shall at all times be bound by the rules”.
The HHA had the right to enforce the rules by imposing penalties. The court discharged the interim order. It held that the Trust, as owner, failed to adhere to the aesthetic rules and, subsequently, failed to pay the penalties. The rules were binding on the owner and the lease contract bound the tenant to the rules as well. Accordingly, the HHA acted lawfully since it was entitled to refuse to sell the tenant prepaid water and electricity vouchers, or to limit the number of units.
According to Acting Judge Moeng: “One of the conditions of title agreed upon by the trust, and registered against the title of the property, was that the trust would be bound by the statutes and rules of the respondent. This position, therefore, differs from illegal clauses in lease agreements, wherein a lessee consents to the termination of the supply of his water and electricity in case he is in arrears with his rent payments.”
There was nothing unlawful or immoral about the rules and it was not against public policy. The court was, therefore, bound to respect the freedom of parties to contract as they please. The tenant had the option not to sign the lease but, once he accepted the lease with the rules of the HHA, he, like the owner, was bound by it.
Dr Sayed Iqbal Mohamed is the chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity. For advice, contact Pretty Gumede or Loshni Naidoo at 0313046451 or email [email protected] or [email protected]
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