Pay your levies, or else…

Dear Mr Lawyer

I am the owner of a sectional title, and I have paid my levies every month as required, until the water started seeping through the ceiling of my enclosed balcony into my section when it rains. The leak was clearly emanating from a defect in the common property. I asked the body corporate on numerous occasions to repair the defect, yet after four months of writing letters and sending emails the body corporate still has not done anything to honour this simple request. As a frustrated owner I resorted to desperate measures and employed a contractor to repair the property defect. I settled the bill myself.

May I withhold my levies for a period to set off the money that is owed to me by the body corporate?

Dear Mr Owner

Although this action may sound reasonable, the right to stop paying or to set off a debt against levies is not legally justified and owners are not, under any circumstances, entitled to simply withhold levies.

There is no provision in the Sectional Titles Act 95 of 1986 or the rules that gives an owner the right to withhold levy payments. Even if an owner incurs expense in performing an emergency repair to the common property, and believes that the body corporate owes him money, the owner may only set off the debt against the levies once it becomes liquid.

An amount can only be liquid once it has been agreed upon. An owner cannot set off the amount he believes he is entitled to deduct. The trustees, judge or arbitrator must have confirmed the amount.

If Mr Owner does withhold his levies without the amount being liquid, he is subject to the following sanctions in terms of the prescribed rules:

  • Firstly, the trustees are entitled to charge interest on arrear amounts at a rate determined by them, and so the defaulting owner may receive a larger account, due to the interest on his arrears, than if he had paid his levies.
  • What is more, The Sectional Titles Act imposes a positive obligation on trustees to recover levies from defaulting owners. Not only does the Act empower them to charge interest, the scheme attorneys will most likely issue summons against the defaulter for all costs that the Body Corporate may incur in recovering any arrears.
  • Secondly, the prescribed management rules provide that, except in the case of special and unanimous resolutions, an owner is not entitled to vote if any contributions payable by him in respect of his section have not been duly paid. Therefore, an owner who withholds his levies is unable to vote for ordinary resolutions in respect of the section that he is withholding levies on.

Mr Lawyer, how does an owner deal with a situation where he believes the body corporate is liable for payment?

A dispute must be declared with the Body Corporate by written notice of the dispute or query to the trustees. The trustees or Body Corporate then have 14 days from receipt to resolve the dispute. During this period, the parties should meet to try and resolve the dispute. If there is no resolution after the 14-day period, either party may demand that the dispute be referred to arbitration. The arbitrator must make his/her recommendations in settlement of the dispute within 7 days from the date of commencement of the dispute. The decision of the arbitrator shall be final and binding and may be made an order of the High Court.

It is clear that prescribed processes are in place according to which disputes and related issues can be settled. Not only will this ensure that you act within the legal guidelines, but it will also eliminate unnecessary frustration.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Let your child study law

On 1 August 2013 PPS released the latest results of the South African Legal Services Survey. Of the legal professionals, including 423 attorneys, who participated in the survey, only 52% had confidence in the efficiency of the court and judicial administrative system.

Speaking to colleagues, horror stories are plentiful. Stories of civil court files gone missing for months, sheriffs without vehicles, backlogs in courts regarding motions, default judgments and maintenance claims, sheriffs’ offices taking up to six months to serve documents, chaos in filing of documents at the Masters’ Offices, delays in transfers at the Deeds Offices, backlogs in courts, backlogs at the Masters’ Offices and other Registrars, loss of dockets or other important evidence, loss of knowledge and lack of work ethic.

Serious concerns regarding new legislation pertaining to the courts and the legal profession have some of us running for the hills, this time to Australia. It is a bleak picture indeed, because for some, the wheels are falling off and the end is nigh.

Why, then, did I recently encourage an exceptionally bright young man to study law and not engineering? Because this country and its people need exceptionally bright people to become attorneys, advocates, state prosecutors, magistrates and judges. For the law has such an influence on all aspects of our lives that we cannot afford to have a legal profession without the necessary knowledge and abilities to protect us all.

If it were not for exceptionally bright people in the legal profession, we would not have had the ability to register our child in the school we deem appropriate, free from the bounds of so-called “feeding areas”. We would not be able to return that set of encyclopaedias purchased from the salesmen who came knocking on the door, would have to pay extraordinary interest on our credit agreements and have no guarantee of safety of ownership of our property.

Bright, able minds in the legal profession are of utmost importance to us all. And yes, transformation regarding race and gender is crucial, necessary, and should be embraced and encouraged. But the low entry-level requirements of the LL.B degree has resulted in a large number of students with very few, if any, exceptionally talented candidates. The latter prefer better paid, less regulated occupations. All the more reason why the brightest and most talented should study law. By abandoning the profession and thus the legal system we, as the people of South Africa, will be much worse off. Because truth is that the legal profession actually make a difference in your life, each and every day.

Life in an attorney’s office is not as portrayed in an American television series. It is not Suits or Boston Legal (although some of us wish!). We do not work in designer clothes and not all assistants and secretaries are beautiful, blond, hourglass-figured and sharp-witted. Our offices are not all glass-walled designer areas with quirky memorabilia, couches and clean desks. We have files – hundreds of them. And that is why you in all probability only consult with your attorney in the boardroom or consultation room. Their office space is cluttered with towers of files.

The work requires long, lonely hours of drafting, reading, thinking, considering, re-considering, and arguing with oneself. You need to work exceptionally hard on each matter to achieve the best outcome of the situation for each of your clients. For not all clients have unlimited resources and you have to work within the constraints of their financial ability. And mostly you do not charge fees for all of the effort and time spent.

But the one thing that each branch of the legal profession has in common is that at the end of each day, regardless of when the day ends, you can close your door knowing that you have actually made a difference in somebody’s life, whether it be settling a divorce or finalising an amalgamation agreement, collecting the outstanding levies for painting of the sectional title scheme building, having your client’s debt review successfully granted, or the successful opening of a township plan.

Another satisfaction is knowing that you will never know EVERYTHING – the law is too extensive, too complicated and develops too rapidly to keep up with the intricacies of it all. There will thus always be something new to read, learn or to consider. You will always be able to consider new approaches to old problems and may even argue the same point in law from different perspectives.

If you are willing and able to work hard, learn, and grow in the legal profession you will be able to look back one day on your career with delight and satisfaction – because no two days were ever the same. No court appearance, litigation, transfer or contract is ever the same. And while you were busy you actually had fun – enjoyed the good argument, the adrenalin rush to get the urgent application served, the ticking clock on the service of the plea, answering affidavit, reply or summary judgment application.

And that is why you should encourage your talented and bright child to study law. He or she might just make the difference you may need one day.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Don’t speed through life

Jack Louw was used to driving fast cars – he was practically born with one foot on the accelerator. Jack was also born into a very rich family, which meant there was always money to pay for the fines he kept receiving for exceeding the speed limit. However, Jack’s luck would soon change and he might end up with more than a fine.

According to the National Road Traffic Act 93 of 1996 and the Regulations published on 17 March 2000, the general speed limits are: 60 km/h on a public road within an urban area; 100 km/h on a public road outside an urban area which is not a freeway, and 120 km/h on every freeway.

Prosecution or the imposition of a spot fine is automatic if you are caught exceeding the 60km/h and general speed limits. However, if you speed in a 60km/h zone, and it is greater than 100km/h, you will not have the option of paying an admission-of-guilt fine, but will have to appear in court to answer a charge of reckless or dangerous driving and contravention of the Act.

Depending on the seriousness of the offence, you may or may not be given the alternative of an admission-of-guilt fine as opposed to having to appear in Court. An admission-of-guilt fine is a fine that a person is issued with after admitting guilt. It may seem like an easy exit to all problems. However, once admitting guilt, the person will have a criminal record.

Admission-of-guilt fines for speeding are calculated on the basis of rands per km/h in excess of the speed limit. These fines may be paid at any office of the South African Police Service in the Magisterial district where the offence occurred, by the date stipulated on the notice that will be posted to you within two weeks after you received the ticket. You must produce the ticket when paying the fine.

Should you choose not to pay the admission-of-guilt fine, but rather state your case in court, you should check the fine to ascertain the date on which you must appear in Court and the case number. Queries about the fine must be directed to the clerk of the criminal court of the Magisterial district of issue, and the actual document must accompany your query.

It is important to take notice of the speed you are driving. It may be important for you to get to your destination in time, but is it worth paying a fine, or having a criminal record? It is also important to remember that if you get a fine in a town other than your home town, you will have to travel back to that town to appear in court.

Think before admitting guilt to a speeding offence, or even better, think twice before committing an offence that would put you in that position.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Trouble with the neighbours

You and your neighbour have been good friends for years; your children have grown up together and you have always thought of him as a reasonable man, but lately you’re not so sure. His trees’ branches overhang into your property, blocking your gutters with leaves, not to mention the root system creeping closer to your home’s foundation. When you confront him, he flatly refuses to do anything about it, since they are, after all, trees he and his wife planted when they bought the property 30 years ago!

The question in everyone’s mind is, what can I do about my neighbour’s trees and plants that are causing damage to my property and discomfort to me? He most certainly has the right to do on his property as he pleases, but what about my right to use and enjoy my property? Surely his enjoyment cannot be at the cost of someone else?

Trees with lateral root systems are often a culprit in neighbourly disputes. In the case Bingham v City Council of Johannesburg 1934 WLD 180, the municipality planted trees along the footpath for beautification purposes. The problem was that they chose to plant oak trees, which have strong lateral root systems that drain the soil surrounding them. The flowers and shrubs in Bingham’s garden died as a result of this, and even worse, the strong root system was making its way to the foundation of his home. Due to the threat to the property (the house) the court ordered the municipality to remove the trees.

In Vogel v Crewe and another [2004] 1 All SA 587 (T) the issue regarding roots was also discussed in court. Vogel and Crewe were neighbours and Crewe was of the opinion that a tree planted about two metres from the wall, separating the two properties, was the cause of all the problems on his property. According to him the tree’s root system was causing damage to the boundary wall and leaves from the tree were falling into his swimming pool and blocking his gutters and sewage system. The court’s approach was based on an objective test of reasonableness. They took into account the benefits of protecting the tree, being its visual pleasure, shade, and the oxygen it produced, as opposed to the trouble it was causing Crewe. Crewe was not able to prove that the problem with the leaves in his swimming pool, gutters and sewage system was caused by the tree in question, and the court found that the wall separating the two properties could easily be repaired. No drastic action, like removing the tree, was necessary and Crewe failed in his application.

From the above it is clear that the court will only order the removal of a tree should the roots pose a real and immediate threat of damaging the property. They will not order the removal of overhanging branches for the shedding of leaves.

In Malherbe v Ceres Municipality 1951 (4) SA 510 A it was confirmed that should a neighbour’s tree branches overhang or the roots spread into your property and the owner refuses to remove same, you may chop them off on the boundary line.

Hopefully you will be able to resolve tree-related issues with your neighbour in a courteous way, and remember, you also have the right to enjoy your property.

References:
Bingham v City Council of Johannesburg 1934 WLD 180
Vogel v Crewe and another [2004] 1 All SA 587 (T)
Malherbe v Ceres Municipality 1951 (4) SA 510 A

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)