Sunday, September 9, 2012

Can a Body Corporate deny non-paying levy residents access to the complex

Can a Body Corporate deactivate the access cards of non-paying levy residents thereby denying them access to the complex? A recent High Court ruling delves into the rights around spoliation. Source: Fairbridges Arrorneys Law Letter September 2012 A spoliation order is available where one party takes the law into its own hands and deprives another party of his or her possession of movable or immovable property. The spoliation order is aimed at restoring the status quo pending resolution of the legal rights and obligations of the parties. A resident in a village complex used this remedy when the Body Corporate barred the resident from gaining access to the village complex be deactivating the access disc that opened the security boom at the entrance to the complex. When the resident attempted to gain access he could not do so. The Body Corporate claimed that it was entitled to deactivate the access disc because the resident was in arrears in respect of rates and levies. The Body Corporate relied upon a provision in the rules of conduct of the Body Corporate in terms of which is claimed to be entitled to suspend the access tags of any resident if the resident failed to pay the monthly levy due to the Body Corporate. The resident applied to the High Court in Pretoria on an urgent basis for an order restoring the resident’s possession of, and access to his residence in the complex. The application was opposed by the Body Corporate but an order was granted in favour of the resident. The Body Corporate argued that in reality it was the only denying the resident vehicle access to the complex. Judge Legodi disagreed. He said that this was contrived because in effect the resident would either be able to drive from his residence as far as the gate but then have to seek transport further or, if his vehicle was outside the complex, he would have to ride to the gate, park his vehicle at the gate and the walk to his residence in the complex. Under the circumstances the court granted an order restoring the resident’s rights of access to the premises. Fisher v. Body Corporate Misty Bay 2012 (4) SA 215 (GNP)

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