Victory for flat-owner in CSOS 's first adjudication ruling.
Category Newsletter: Latest News
The Community Schemes Ombud Service (CSOS) has issued its first adjudication order, granting an owner’s application that a body corporate must repair her water-damaged flat and reimburse her the amount she was over-charged for water consumption.
The CSOS was established in 2014, but it has been able to issue adjudication orders only since October last year, when the regulations governing the service were promulgated.
The CSOS provides a low-cost dispute-resolution mechanism for residents of community schemes, including sectional title schemes, homeowners' associations and retirement villages.
The adjudication order was issued in January. A representative of the body corporate failed to attend the proceedings, and the adjudicator made the order on the basis of the evidence provided by the applicant, Barbara Bernadie, who owns two units in Botania Court in Meyerton, Gauteng.
The order states that the roof in one of Bernadie’s units started to leak after a storm in April 2015. She asked the body corporate to repair the roof, but it neither assessed nor repaired the damage. In November 2015, the roof leaked again during another storm.
Bernadie submitted photographs to the adjudicator showing that the ceilings in the flat were cracked and sagging and that paint was peeling from the walls. The damage became worse whenever it rained.
In October 2016, the damage to Bernadie’s flat was discussed at the scheme’s annual general meeting. The treasurer told the meeting that the body corporate did not have enough funds to repair the damage. The body corporate discussed raising a special levy, but rejected the proposal.
Bernadie told the adjudicator that the dilapidated state of the flat had resulted in her losing income, because she could not increase the rent.
The CSOS adjudicator, Zama Matayi, ordered the body corporate to repair the roof, ceilings and interior walls of the flat within 30 days of the order.
Matayi said the Sectional Title Schemes Management Act is very clear that a body corporate, through its trustees, is responsible, both operationally and financially, for the maintenance and upkeep of the common property. There was no evidence to suggest that the roof of the unit was not part of the common property; therefore, it lay “squarely within the responsibilities of the body corporate”.
Trustees are not responsible for repairing or maintaining the interiors of units, unless the interior is damaged as a result of something in or on the common property, Matayi said. No evidence had been submitted to contradict Bernadie’s evidence that the damage to the walls and ceilings had resulted from the damage to the roof (common property).
He said the worsening condition of the ceilings posed a serious threat to the safety of the occupants and could expose the body corporate to a personal injury claim if left unattended.
Over-billing
Bernadie also complained to the CSOS about the amount the body corporate had charged her for water consumption.
In 2013, the body corporate decided that owners would be billed for water based on the number of people occupying each flat instead of paying a flat rate. The new system required the body corporate to know the occupancy level of each flat every month.
Bernadie said that, because her tenants were not always at home when the head count was conducted, she SMSed the monthly occupancy details to the body corporate. Despite this, Bernadie said she was incorrectly billed.
She asked the adjudicator to order the body corporate to reimburse her R3 375, which, she said, was the sum of the body corporate’s incorrect calculation and the penalties added to her levy. In her evidence, she noted that, in November and December 2015, she had been under-charged by R57 and R79.
Matayi said Bernadie had provided him with a breakdown of the amount claimed, and there was no evidence to rebut her submission. However, it was fair that the amounts by which she had been short-billed be deducted from the total claim. He therefore ordered the body corporate to refund her R3 238.
Matayi said the manner in which Bernadie had dealt with the dispute with her body corporate was commendable. She had continued to pay her levies and water bill, including the disputed amount.
Default judgment
On December 14 last year, the CSOS informed Bernadie and Mark Hencock, who was apparently the chairperson of the body corporate, that the matter would be heard at the CSOS offices on January 16 and 17. However, only Bernadie was present on the morning of January 16.
The adjudicator phoned Dina Pretorius, the caretaker and a trustee, who said she could not attend because she did not have transport, but she would arrange for someone from the body corporate to be present the next day.
On January 17, Matayi said he received an email in his junk folder that Hencock had sent on December 20 informing the adjudicator that he had not been the chairperson since October 20, 2016.
Matayi said he phoned Pretorius, who said no one from the body corporate, including herself, was available to attend the proceedings.
Bernadie applied for the adjudication to proceed in the absence of the respondent.
Matayi said the CSOS Act does not provide for default judgment proceedings, but, because default judgments are an integral part of the South African legal system, he considered Bernadie’s motion for a default judgment.
The factors that weighed in favour granting Bernadie’s motion were:
- The financial loss she would suffer if a default judgment were not granted;
- The body corporate had received a month’s notice of when the proceedings were to take place;
- Pretorius’s explanation that she did not have transport was insufficient to justify her non-appearance; and
- At no stage had the trustees notified the adjudicator that they wanted to apply for a postponement, or that they may be unable to attend.
You can contact the CSOS head office on 010 593 0533 or info@csos.org.za, or visit www.csos.org.za / www.iol.co.za
Author: iol.co.za
