CLAIM FROM THE BODY CORPORATE FOR LOSS IN RENTAL INCOME AS A RESULT OF DAMAGE TO FLAT RESULTING FROM FLOODING/LEAKS FROM THE ROOF/COMMON PROPERTY

Since 2008, I have owned a sectional title unit on the top floor of a six-floor complex. This unit has been rented out since November 2022. Over the years, there have been multiple previous (2008, 2015, 2017, and 2022 ) incidents of flooding from the roof that has caused damage to my unit. After each incident the trustees undertook only patchwork repairs of the waterproofing to the roof and repaired damages to my flat. 

Again, in June-2023, as result of failed waterproofing of the roof of the complex my flat sustained damages from flooding from the roof. The trustees once again underook patchwork repairs to the roof and refused my demand for a more comprehensive investigation. Only two weeks after these repairs to the roof, there were further leaks from the roof indicating that the so-called repairs had not worked. So I lodged a dispute with the CSOS after which we reached a settlement agreement in February 2024 requiring an expert investigation of the roof and consequent repairs to the roof, as well as my unit. The investigation found that entire roof needed to be waterproofed. After many delays (including needing to raise special levies etc) external repairs to the roof were only completed in January 2025. The trustees will only next week assess the scope of damages to my flat and provide an indication of the timeframes for completion of repairwork.

It should be noted that since 2023, my tenant has been frequently experiencing leaks right until January 2025. So despite signing a renewal of the lease in December 2024, she cancelled the lease a month later in January 2025, and will vacate the flat by end of February. The flat will be vacant from 1 March 2025. I have no idea when the flat will be ready for occupation after the repairwork. There is visible water damage to ceilings and walls in the passage, lounge, toilet, and bedroom, as well as laminated flooring. So marketing the flat rental by a new tenant has not been possible. I will be without a rental income for March and very likely for April, as rental marketing most often requires at least two months.

What are my rights to  a claim for a loss in rental income?

Which legal processes/institutions would be most relevant?  (NB. The CSOS has limited jurisdiction. It appears that it can order the body corporate to submit a claim to the body corporate insurance. However, it is possible that the insurance will not pay since damage to my flat has resulted from failed maintenance rather than a sudden incident. In this case, it  appear that the CSOS may not have the power to make an order against the body corporate to compensate me for lost rental. Would I then have to institute a process in a court? Which court ?)

Please note that I am looking for low cost options/recommendations as I have very limited resources for legal fees . I am currently a scholarship student abroad. My only income is from my flat.

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

You would definitely have a claim against the body corporate for your lost rental for your flat. For the entire period that your flat remains without a tenant. The claim against the body corporate would be based in delict, and would be as a result of the body corporate being negligent in failing to maintain the property, which ultimately led to the leaks and the damages to your flat.

Your claim would actually include the damages (which they have already undertaken to repair) as well as the lost rental. 

Whether the body corporate asks its insurance company to settle the claim or not is not really your concern. You have a claim against the body corporate, and you should proceed with your claim. 

In my opinion, you should wait until the body corporate has repaired your flat before sending a letter of demand. 

The letter of demand would have to be sent in April or May and it would essentially set out the facts for the body corporate and would make allegations that you have lost out rental because of the extensive leaks, and you are seeking to hold the body corporate liable for the lost rental which you have already suffered as well as any further lost rental.

The letter should request the body corporate to admit liability, and it should say that if the body corporate refuses to admit liability that you will then consider your options of instituting legal proceedings against the body corporate.

The body corporate could then refer your claim to the insurance company, who may or may not settle the claim.

If your claim is not settled, then you would most probably have to institute legal proceedings by issuing a summons out of the local Magistrate's Court.