The Chairman sits firmly planted in his chair furious about levy defaulters not paying their levies surrounded by his similar frustrated Trustees staring the Body Corporate’s attorney directly in the eyes demanding to resolve to cut off the electricity to any owners unit where the levy account is in arrears. The attorney hesitates… Is the Body Corporate entitled to take such steps? What does the Sectional Titles Act say? Is such an act legal?
What exactly is the legal position regarding a Body Corporate terminating the electrical supply to levy defaulters units?
There are three applicable pieces of legislation:
- Section 14(1) of The By Laws of the Greater Johannesburg Metropolitan Municipalityprovides that when any consumption charges due to the Council for electricity supplied are in arrear, the council may at any time without notice disconnect the supply to the electrical installation.
- Section 16 of The Rental Housing Act, 1999 provides that any person who unlawfully shuts off the utilities to a rental housing property shall be guilty of an offence and liable on conviction to a fine or imprisonment not exceeding 2 years or to both such fine and imprisonment.
- Section 27(3) of The Electricity Act,1987 provides that any person, who without legal right (the proof of which shall be upon him) cuts off or damages or interferes with any apparatus for generating, transmitting or supplying electricity, shall be guilty of an offence and liable on conviction to a fine not exceeding the amount which the Minister may from time to time prescribe by regulation or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment.
The By Laws obviously do not entitle the Body Corporate to take such similar steps as the Council is entitled to take.
The Rental Housing Act may apply and deem it an offence for the Body Corporate to shut off the utilities to a unit occupied by a tenant. The Rental Housing Act would however not apply to a unit occupied by an owner.
As stated above in terms of the Electricity Act quoted above, it is illegal for the Body Corporate to terminate the electrical supply.
The Sectional Titles Act is silent on the particular issue.
In addition if a Body Corporate does terminate a defaulting owner’s electrical supply, the owner may bring what is called a spoliation application to Court. In essence,spoliation means that a party’s peaceful possession of an item has been unduly disrupted. Plainly put the remedy is available where a party disturbs this peaceful possession and acts by taking “the law into his own hands”. In almost all cases the owner will succeed in his application to Court. The Court will order the electricity to be turned back on and will order the Body Corporate to pay back to the owner the legal costs of the court application which the owner has incurred.
This is firmly entrenched in our case law. In the case of Queensgate Body Corporate v Claesen in 1998. The court stated in its judgment that the termination of electricity is “a clear act of spoliation”.
The Body Corporate is not entitled to terminate their defaulting owner’s electrical supply to the unit and such an act constitutes an offence and attracts a criminal sanction.
The attorney has at last answered the Chairman. The Chairman sits back somewhat relieved and in a position to consider other alternatives with his Trustees.
Alan Levy is an attorney at Alan Levy Attorneys who specialises in Sectional Title and HOA Collections and other property matters and are situate in Johannesburg. Alan can be contacted on 083 968 5045 or firstname.lastname@example.org.