Sean Radue
A reader who has locked horns with his body corporate over an unpaid levy has asked the YourProperty expert for assistance in the escalating dispute.
There seems to be some history to the matter but it is unclear whether the dispute is because the reader has not paid his levy or whether he has not paid his levy as a result of the dispute.
The reader asks what steps he might follow should he wish to remain in default or take the matter further.
See the reader’s question here.
According to Sean Radue of Radue Attorneys in Port Elizabeth, the first aspect the reader should consider is that he would not be entitled to vote at any general meeting until he has settled any outstanding contributions.
“A body corporate could elect to take legal steps to recover the amount due to it.”
Radue says such steps often begin by the body corporate demanding payment of the outstanding sum and, failing payment, proceeding to issue summons against the defendant.
“Taken to its conclusion, if this action is in favour of the body corporate, it could result in the reader’s goods being attached by the sheriff and sold in execution on auction.”
Other attachments orders, such as one against the reader’s salary, could also be sought, even possibly proceeding to his sequestration, he says.
“Naturally, this is a less than desirable outcome.”
Should the dispute proceed in this direction, Radue says the reader could raise one or more defences against any summons of the body corporate.
“Depending on the circumstances, the National Credit Act could apply.”
He says the success of any defence would depend on the factual scenario and validity of the defence.
“Arbitration can and should be used in certain circumstances.”
Radue says an annexure to the Sectional Titles Regulations provides for the determination of disputes by arbitration.
“The regulations state that ‘any dispute between the body corporate and an owner or between owners arising out of or in connection with or related to the Act, these rules or the conduct rules, save where an interdict or any form of urgent or other relief be required or obtained from a Court having jurisdiction, shall be determined in terms of these rules’.”
Key to this method of resolution is the existence of a dispute, he says.
“Based on what little we know about the reason for our reader withholding payment of levies, it would be prudent for him to take legal advice as to whether arbitration is truly available or applicable in the circumstances.”
Radue says failure to pay a levy in the absence of a dispute does not comprise a de facto dispute and is therefore not suitable for arbitration.
“The arbitration would take place in accordance with the further provisions of the rule above and the provisions of the Arbitration Act.”
The decision made by the arbitrator would be binding upon the parties, either party then applying to the High Court to then have the award made an order of court, he says.
