In a recent case in the Supreme Court of Appeal (SCA), it was confirmed that there are limits to what a body corporate can do.
One thing that they cannot do is to stop an estate agency from working in a building or complex.
This arose from an owner who long leased his unit via an estate agency with the agreement that the tenant could sublease to tenants on short leases – think Airbnb.
Obviously, this caused some serious problems as these overnight tenants did not behave as was expected by the other owners.
They had noisy parties and there were numerous complaints about their bad parking.
The trustees were able to allow or not allow short term leases.
However, they decided to ban the owner’s agent that had nothing to do with the short-term leases.
On appeal this was overturned by the SCA on the basis that the relationship that the trustees have is with the owner and not his agency.
If they were not happy with the situation, they needed to put the owner on terms for breach of the rules.
They did not have the power to ban an estate agent as this was unconstitutional because it would prevent him from working in the complex.
It should be remembered that this does not mean that the agent has the right of entry if they have not been invited into the complex.
For example, they could not walk around the building canvassing other owners even if they did have a property for sale.
They would only have the right to bring clients into the building to see the one unit that they had for sale/to let and would have to abide by all the rules of the complex.
One of the problems that the trustees had was also that they banned the agency without giving them an opportunity to put their side of the story, as it was said they did not lease to the Airbnb tenants, but to the main tenant only.
It was found that the trustees went way beyond their Sectional Titles Schemes Management Act rights and obligations.
While it may be practical for the body corporate to deal directly with tenants on occasion ultimately, they must deal with the owner when the tenants don’t comply with their requests to abide by the rules.
Remember if it is not in the rules, it cannot be enforced.
- Mike Spencer is the founder and owner of Platinum Global. He is also a professional associated property valuer and consultant with work across the country as well as Eastern Europe and Australia.