EVICTING STUDENTS: NOT ALL LEASES ARE ALIKE
Stay At South Point Properties (Pty) Ltd v Mqulwana and Others (UCT intervening as amicus curiae) (1335/2021) [2023] ZASCA 108 (3 July 2023)
In this matter the Supreme Court of Appeal held that the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) does not apply in instances where students are evicted from residences at a higher education institution. The judgment is very important for universities across the country. Beware though that in many news reports and internet articles on this judgment, there appears to be a presumption that the judgment applies to student accommodation generally. This is not so.
The Judgment
Summary of the Judgment
WHEN MAY A SECTIONAL TITLE BODY CORPORATE WITHHOLD CLEARANCE FOR TRANSFER?
The Body Corporate Marsh Rose v Steinmuller and Others (A5002/2020) [2021] ZAGPJHC 440 (23 September 2021)
One item that invariably finds itself on the agenda of trustee meetings is the issue of non-compliance by owners with the rules. Many of these, such as the failure to obtain building approval and to comply with architectural building guidelines, are detrimental to the well-being of the scheme and the interests of the individual owners. What can the body corporate do?
Even if the rules allow the trustees to impose penalties in respect of the transgressions, a headstrong owner who denies that he transgressed a rule, or one that is struggling financially, soon accumulates a hefty outstanding penalty liability (often in conjunction with being in arrears with levy payments). In these circumstances a body corporate may feel perfectly entitled to withhold its consent to transfer, where such an owner has sold his unit, by refusing to issue the “clearance certificate” that the owner will need for transfer, unless the penalties for transgressions of the rules are paid. The judgment advises why this practice of body corporates is not within the powers granted to body corporates in the Sectional Titles Act.
