A recent court case (Fisher vs Body Corporate Misty Bay) involved a set of facts which will be of interest to sectional title owners, trustees of body corporates and managing agents.
Fisher, the owner of a sectional title unit in the Misty Bay Village complex fell into arrears with the payment of his levies. Access to the complex was controlled by a security boom at the entrance / exit to the complex. Each owner was given an access disk which activated the boom. When Fisher failed to make payment of the arrear levies the trustees deactivated his access disk and he was unable to gain access to the complex by car.
The body corporate claimed that they were entitled to deactivate his disk and relied on the following rule which was applicable to the scheme:
“The trustees operating on behalf of the body corporate reserve the right to disconnect and lock out electricity supply or perform any other action deemed necessary to any owner or tenant where the owner, family of the owner or tenant, friends or domestic staff continue to disregard these rules and continue to do so after receiving written notice in this regard.”
Fisher took the matter to court. The court held that notwithstanding the provisions of the abovementioned rule the body corporate, in disconnecting Fisher’s disk, had infringed on his previous undisturbed access to the complex and had also infringed on the use of his vehicle. If Fisher wanted to use his car to get to work he would be compelled to park the vehicle outside the complex overnight as he could not exit the complex by car. If he did not want to park his vehicle outside the complex permanently he would either have to use public transport or arrange for transport to be able to reach his place of employment.
The court held that in deactivating Fisher’s disk the body corporate had taken the law into its own hands and that it (the body corporate) was not entitled to infringe on Fisher’s rights of access to the complex and the use of his vehicle. The body corporate was ordered to reactivate Fisher’s access disk.
It should be noted however that although the court held that the body corporate was not entitled to attempt to remedy Fisher’s failure to pay the levies by deactivating his disk it does not mean that the body corporate was without remedy – but rather that it adopted the incorrect course of action. The body corporate should rather have issued a summons against Fisher. A body corporate can recover not only arrear levies, but also attorney and client costs and interest from an owner against whom it has to issue summons to recover arrear levies. Allowing owners to get away with payment of levies can lead to the bankruptcy of a sectional title scheme and body corporates should take swift action against defaulting owners.
(Disclaimer: All articles are for information purposes only and do not constitute legal or other professional advice)