It was while I was writing last week’s column that a new email alert popped up at the top of my screen with the following subject line: “Prisoners in our apartment”.
Alarmed, I went to my inbox and found Yvette Olivier’s desperate plea for help.
“We have been renting an apartment in Parklands, Cape Town, since November 2023, paying our rent in full every month,” she said.
“But yesterday the body corporate removed our phone numbers from the access-control app that allows us to enter the complex because our landlord has not paid the levy for several months. My daughter and I now cannot leave, as we will not be able to come back in. My grandson, whom I foster, cannot come home. We can’t buy food, and we can’t order food in, as we cannot open the pedestrian gate either. We are literally prisoners in our own home.”
She’d spoken to a trustee at the complex about her plight, and he’d said there was nothing he could do. Her rental agent said the same thing, as did the managing agents of the complex.
“And the owner couldn’t be bothered,” she said.
The Rental Housing Tribunal told her they couldn’t help her until Monday. By then, Olivier had been trapped in her apartment for more than 24 hours, and her 13-year-old grandson had to spend the previous night at her sister’s home.
The body corporate trustees have no legal connection to the tenant, so what the body corporate is doing is effectively punishing the tenant for the actions of her landlord.
— Marlon Shevelew, attorney
I immediately contacted Marlon Shevelew, a Cape Town attorney who specialises in rental property issues, for his advice on what those trustees had done.
“The body corporate trustees have no legal connection to the tenant, so what the body corporate is doing is effectively punishing the tenant for the actions of her landlord,” he said.
“They are holding her and her family prisoner, or unlawfully evicting them by virtue of the fact that, if they leave the premises, they will not be able to get back in. I would suggest that she get a lawyer to apply to the Rental Housing Tribunal for an urgent spoliation order.”
I then shared that advice with the managing agents for the complex in question, Somerset Gardens. Herman Herbst, portfolio manager at Merville Properties, said the Somerset Gardens trustees had passed a resolution in 2018 allowing them to withdraw access to the tenants of owners who were in arrears with their levies.
I pointed out the illegality of that resolution and shortly afterwards Olivier let me know that her access rights had been restored. Via Herbst, I asked those trustees how they justified their actions, and how often that resolution had been used to lock tenants in or out of their homes in the past six years. They claimed to have passed that resolution on the advice of the previous managing agent.
“The owner in this case was informed that he still had access [to the complex] and could open for his tenants [by means of his cellphone, meaning he would not have to physically visit the complex to do so],” they said.
The trustees maintain that the purpose of their access denial “was not to punish the tenant in any way”, but they were nevertheless indifferent to Olivier’s obvious distress and pleas for help until she approached the media for assistance.
Based on “further advice”, the trustees told me, they had decided to reinstate Olivier’s access. And, after having consulted with the Community Schemes Ombud Service (CSOS), they wouldn’t be “using this method” in future.
As for how often they’d effectively locked tenants in or out of their homes since 2018, they said only that it was “not a regular occurrence”, as it was done only in extreme circumstances, “where the owner failed to respond to other forms of communication”.
Olivier said none of the parties she approached when she discovered her access had been revoked had told her the owner could open the gate to the complex for them.
“We were not even aware that the owner, who occupied the unit immediately before us, still had access to the complex. If I hadn’t contacted you, we would probably still not have been granted access, as the rental agent told me we [would] have to wait until the owner paid the arrear levies.
“Who knows how long that would have taken, or if it would have happened at all?”
Rowan Terry, senior legal counsel for TPN, a credit bureau specialising in vetting tenants for rental properties, said tenants in Olivier’s situation could also lodge a damages claim against the body corporate for any harm they had suffered as a result of its actions, including alternative accommodation costs.
So what action can the trustees of a body corporate take when an owner falls behind in making levy payments?
If the owner ignores a final notice to pay, they can approach CSOS to recover the outstanding levies, said CSOS acting chief ombud Thembelihle Mbatha.
“The body corporate has no legal relationship with the tenant, and therefore outstanding levy amounts should not affect the tenant,” she said.
But in terms of section 39 of the Community Schemes Ombud Act, trustees can obtain an order compelling a tenant to pay all or part of their rental, not to their landlord, but rather to the body corporate, in lieu of outstanding levies due by their landlord, until the arrears are paid up.
Now that’s how to “not punish the tenant in any way”.
• Contact Knowler for advice with your consumer issues via e-mail consumer@knowler.co.za or on X (Twitter) @wendyknowler
