I own a property that is part of a body ...

Asked by Johann on 23-12-2020 14:12:29
Question posted in the Property Law category relating to Western Cape

I own a property that is part of a body corporate.

In 2019 the trustees called the annual meeting for all owners to attend, but it was postponed a week before the initial date that was set. So, unfortunately I could not attend the meeting based on the fact that it was postponed on such short notice. The meeting was held but I never received any kind of notification or minutes about the meeting. In this meeting it was apparently decided that the monthly levy would be increased by 27%, but I never received any notification of this increase. The trustees also do not send out any statements to the owners on a monthly basis, only once a year before the annual meeting. After the latest meeting that was held in October this year I received an email stating that I was in arrears with my levies and I was put to me that all owners that has an outstanding balance over 90 days would receive a letter of demand. 

I then received a statement and saw that was just over R7000 in arrears and I calculated that R5000 is what I should pay to get up to date. On the statement I then saw for the first time that the levy was increased 14 months ago (after the 2109 meeting)I then asked the trustees to send me proof where I was sent any form of notification to indicate that the monthly levy was increased. Yesterday, after3 weeks they still could not sent me such proof, instead the new chairperson sent me a copy of an email where the previous chairperson send an email, 16 months ago, to her self-indicating the new monthly levy. It looks like a cover-up for a mistake

So, for the 16 months that I was not notified that the levy was increases, the outstanding amount totalled up to R1984. I received a letter of demand last week that I have to pay R7000 within the next 14 days to avoid further legal steps. I paid R5016 which according to my calculations is the outstanding amount.

So my questions on this:

Am I at all liable for the 16 months difference based on the fact that the trustee’s administration was poor and after the fact?

If have paid a big portion of the outstanding amount as stated in the letter of demand, so is the letter of demand then still valid?

If I am liable to pay that amount, what terms could I offer to pay it back?

There are other owners who are not aware of this yet, what impact could this have to those who also received a letter of demand?

Hope it make sense

Thanks

Joe

Answer to the Question

Posted by Att. Patrick on 23-12-2020 22:30:01

Hi there Joe 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. 

The trustees should be sending out monthly levies statements, how else can people see if there is anything outstanding. This is crazy. You need to get the members of the BC to vote and instruct the trustees to do this. 

I think what you need to do is to request a copy of the minutes of the 2019 meeting to see what was discussed, and more importantly, what was decided. If there isn't a recordal of a decision, and a vote, and an outcome in the minutes, then it never happened! An email about an increase is not good enough. If there was a vote (which was passed) at the meeting, then it is binding on the members of the BC.

Ask the trustees for the minutes, and tell them that these minutes should also be voted on at the 2020 AGM to confirm their correctness. 

If the increase is not recorded in the minutes, then there is no increase. And you must tell the trustees this, and that their letter of demand is useless, and you will not be paying the balance of the R1984 because they never followed the right procedure in increasing the levies. 

I think that you should try get your co-members to vote on removing the trustees, and putting in new trustees who know what they are doing. There are also lots of management companies who operate body corporates and know how to send out levies statements, and notices to AGMs, and how to postpone meetings, etc. You guys should probably be using one of these. 

Q: Am I at all liable for the 16 months difference based on the fact that the trustee’s administration was poor and after the fact? --> No, not unless the trustees correctly increased the levies at the 2019 meeting, and the decision is recorded in the minutes of the meeting. 

Q: If have paid a big portion of the outstanding amount as stated in the letter of demand, so is the letter of demand then still valid? --> Yes, the letter is still valid. But, you seem to have a good defence to the claim. 

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question. 

Att. Patrick 

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

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Hi Patrick.

Thanks for the reply, it makes perfectly sense!

So, just 2 more questions
If the minutes were taken in a meeting but I never received it in any format, do I have a point to argue that I cannot be expected to pay immediately for something that I am not aware of?

If the trustees provide me with the minutes of that meeting, am I then immediately responsible to pay the outstanding amount, or should I then offer the payback terms?

Joe

Answer to the Question

Posted by Att. Patrick on 26-12-2020 10:58:39

If the minutes were taken in a meeting but I never received it in any format, do I have a point to argue that I cannot be expected to pay immediately for something that I am not aware of? - - > Unfortunately, no. Once the vote is taken at the meeting it is binding on the members. It would be logical however for the trustees to send out a notification or levies statement to the members so they are informed of the decision. 

Answer to the Question

Posted by Att. Patrick on 26-12-2020 11:00:14

If the trustees provide me with the minutes of that meeting, am I then immediately responsible to pay the outstanding amount, or should I then offer the payback terms? - - > You would be required to immediately pay the balance, however, there is nothing stopping you from making an offer to pay the arrears off on a monthly basis. But the trustees don't need to accept your offer. If you don't pay, they will need to summons you. 

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