Property Law and Sectional Title

 

 

No, restricting access is also generally unlawful without a court order.  South African law protects an owner's right to use and possess their property.  Body Corporates cannot take the law into their own hands by preventing access as a levy collection tactic.  Such actions can be challenged in court, leading to legal repercussions for the Body Corporate.
 

No, absolutely not!  It is unlawful for a Body Corporate in South Africa to disconnect essential services like water, electricity, or gas to a unit as a means of forcing levy payment without a court order.  Doing so is considered "spoliation" and is illegal.  The Body Corporate can face legal action and be forced to reconnect services immediately, potentially incurring legal costs and damages.  Always follow lawful collection procedures, not illegal service disconnections.
 

"Arrear levies" are simply overdue and unpaid monthly levy contributions owed by a unit owner to the Body Corporate of their sectional title scheme. Levies are mandatory contributions from all owners to fund the scheme's operational and maintenance costs. When an owner fails to pay their levies by the due date, the unpaid amount becomes an arrear levy, representing a debt owed to the Body Corporate.
 

The owner remains ultimately responsible for levy payments, regardless of tenant rental payments (or non-payment). However, if the owner is renting out their unit, the Body Corporate can utilize Section 39(1)(f) of the CSOS Act to potentially recover arrear levies directly from the tenant's rental income.  This requires a CSOS order directing the tenant to pay rent to the Body Corporate until the arrears are settled. The tenant must be cited as a co-respondent in CSOS applications of this nature.

While owners are legally obligated to pay levies, Body Corporates, acting reasonably, may consider:

  • Payment Arrangements: Negotiating a structured payment plan to allow the owner to pay off arrears in installments.
  • Understanding Circumstances: While not obligated, understanding the owner's genuine financial hardship can inform a more compassionate and potentially workable approach.
  • Consistency and Fairness: Any payment arrangements must be carefully considered to ensure fairness to all owners and should not set a precedent for non-payment. Legal advice should be sought to ensure arrangements are legally sound and enforceable.

However, it's crucial to remember that Body Corporates have a fiduciary duty to all owners to recover outstanding levies and maintain the scheme's financial health.  Long-term non-payment cannot be sustained.

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Arrear Levies in Sectional Title

Arrear levies refer to unpaid contributions owed by owners within a sectional title scheme to the Body Corporate. These payments fund the day-to-day operation of the development — from maintaining shared spaces and paying service providers to managing insurance and compliance obligations. When owners fall behind, the shortfall affects every member of the community.

Under the Sectional Titles Schemes Management Act 8 of 2011 (STSMA), each owner has a statutory duty to contribute to common expenses. Failure to do so creates a debt enforceable through formal legal action. The Body Corporate, acting on behalf of all owners, may recover the arrears by following the procedures prescribed in the Act and the Magistrates’ Courts Rules.

Arrear levy recovery is not only about debt collection — it is about maintaining the financial integrity of the scheme so that essential services and property values are preserved for everyone involved.

Why Arrear Levy Collection Matters

Unpaid levies place immediate pressure on a scheme’s finances. Routine maintenance is deferred, service providers go unpaid, and compliant owners carry the cost of others’ defaults. Over time, this erodes both the standard of living within the development and the value of each unit.

Prompt and lawful recovery ensures that the scheme remains solvent and functional. It allows the Body Corporate to meet its obligations and maintain common property without disruption. Decisive action — taken in accordance with the STSMA — demonstrates sound governance and protects the interests of all members, not just those in arrears.

The Legal Process of Collecting Arrear Levies in Sectional Title

Recovering arrear levies follows a defined legal process governed by the Sectional Titles Schemes Management Act 8 of 2011 (STSMA) and the Magistrates’ Courts Rules. Each step must be properly executed for the debt to be enforceable. The process ensures fairness to the owner while protecting the Body Corporate’s right to recover what is owed.

1. Letter of Demand (Section 56 Notice)

The process begins with a formal letter of demand issued to the defaulting owner. It specifies the amount outstanding, the nature of the debt, and provides a period — usually 14 days — for payment or response. Proper service of this notice is essential, as it establishes legal proof that the owner was informed of the arrears and gives the Body Corporate the right to claim legal costs and interest if payment is not made.

2. Summons and Service by the Sheriff

If payment remains outstanding, a summons is issued through the Magistrate’s Court with jurisdiction over the property. The Sheriff serves the summons at the owner’s unit, which acts as their domicilium citandi et executandi — the legal address for service. The owner has ten business days to file a notice of intention to defend or to pay the arrears in full.

3. Default Judgment

If the owner does not respond within the prescribed period, the Body Corporate may apply for default judgment. The court reviews the documents to confirm service and the amount claimed. Once judgment is granted, the arrears become a legally confirmed debt.

4. Warrant of Execution (Movable Property)

After judgment, the Body Corporate may apply for a warrant of execution against the owner’s movable property. The Sheriff is authorised to identify and attach assets, which can be sold if payment is not made. In many cases, owners reach settlement once this step begins.

5. Section 66 Application (Immovable Property)

If the sale of movable property does not satisfy the debt, the Body Corporate can apply to have the owner’s unit declared executable under Section 66 of the Magistrates’ Courts Act 32 of 1944. This allows the Sheriff to attach and auction the property. The proceeds are used to settle outstanding levies, legal costs, and related charges before transfer to the purchaser.

Every step of this process must be handled lawfully and documented correctly. Procedural missteps can delay enforcement or render the judgment unenforceable. Professional oversight ensures that recovery is both efficient and compliant with statutory requirements.

What Bodies Corporate Should Keep in Mind

Recovering unpaid levies is a legal process, but it also requires sound management and fair conduct. Each action taken by the Body Corporate must comply with the Sectional Titles Schemes Management Act (STSMA) and the Magistrates’ Courts Rules to ensure the outcome is lawful and enforceable.

Owner Responsibility

Levy obligations attach to ownership, not occupation. An owner remains liable for payment even if a tenant fails to pay rent or if there are disputes with the managing agent or trustees. Levies cannot be withheld or offset against unrelated claims without a court order.

Recovery of Costs

All reasonable legal and administrative costs incurred in the collection process can be recovered from the defaulting owner. This includes attorney fees, Sheriff’s fees, and interest from the date of demand.

Alternative Forums

The Community Schemes Ombud Service (CSOS) offers an alternative forum for levy-related disputes. It may be more cost-effective for smaller matters, but where court enforcement is necessary, the Magistrate’s Court remains the proper venue. Attorneys can advise on the most effective forum based on the circumstances.

Prohibited Conduct

Bodies Corporate must avoid unlawful recovery methods. Cutting utilities, restricting access to units, or publishing arrears lists are not permitted and may expose the scheme to legal action. Enforcement must always follow due process.

By maintaining procedural discipline and transparency, the Body Corporate protects both its financial position and its credibility with owners.

Why You Need Legal Assistance

Arrear levy recovery involves statutory and procedural steps that must be executed correctly to hold up in court. Errors in notice, service, or documentation can delay enforcement and increase costs. Working with an attorney ensures that each step is valid, recoverable, and compliant with the Sectional Titles Schemes Management Act.

VDM Attorneys – Debt Collection Attorneys

VDM Attorneys assists Bodies Corporate with the lawful recovery of unpaid levies. We handle the process from demand to enforcement, ensuring compliance and protecting the financial stability of your scheme.

Contact us for professional support with arrear levy recovery and other sectional title debt matters.