23 Aug Can a body corporate disconnect utilities?
In sectional title schemes, disputes over unpaid levies are all too common, leading to a big question: Can bodies corporate cut off the electricity of owners who fall behind on payments? Earlier this year, the Gauteng High Court tackled this issue in two cases, offering insight into the legal complexities involved.
A closer look
In 2022, a case came before the court where a body corporate wanted to disconnect the electricity of an owner who was behind on their levies. The argument was that unpaid electricity bills were adding to the costs for other members, so the body corporate believed they should be allowed to disconnect the delinquent owner’s electricity.
The body corporate not only sought payment of the outstanding arrears, interest, and legal costs but also asked the court to authorise cutting off the owner’s electricity if the arrears were not paid within 10 days. However, the court refused, stating that the body corporate didn’t have the legal authority to interfere with a member’s utility supply. This decision was in line with the precedent set in the Lion Ridge Body Corporate v Alexander and Others case, which established that neither the Sectional Titles Act nor the standard Management and Conduct Rules give a body corporate the power to cut off utilities.
A similar situation arose in 2023, where the body corporate again tried to disconnect the electricity of a non-paying member to recover arrears. The judge denied this request, echoing the 2022 case’s reasoning: there’s no legal power for a body corporate to disconnect utilities without a specific rule permitting it.
Why can’t bodies corporate disconnect electricity?
In both cases, the judges made it clear that bodies corporate don’t have the statutory or common law power to disconnect utilities. To gain this power, a body corporate would need to adopt a specific rule under the Sectional Titles Schemes Management Act (STSM Act) or its regulations. Even then, any action must align with constitutional requirements, safeguarding rights like access to water, adequate housing, and protection against arbitrary property deprivation.
How can bodies corporate establish this power?
If a body corporate wants to use disconnections to enforce levy payments, they must create a rule that explicitly gives them this authority. This rule needs to be reasonable, apply equally to all owners, and get the green light from the Community Schemes Ombud Service (CSOS). Plus, it must respect constitutional rights.
To legally disconnect electricity, two steps are crucial:
- Adopting a specific rule: The body corporate needs to draft, adopt, and have a rule approved by CSOS that allows for the disconnection of utilities in cases of non-payment.
- Obtaining a court order: Even with a rule in place, the body corporate can’t act on its own. They must get a court order to authorise the disconnection, ensuring the action is legally justified and takes the owner’s rights and situation into account.
Conclusion
While it’s understandable that bodies corporate might be frustrated by unpaid levies, they can’t take the law into their own hands by disconnecting utilities. The legal framework calls for a careful approach that respects both statutory requirements and constitutional rights. By adopting specific rules and seeking court orders, bodies corporate can address non-payment issues within the boundaries of the law, ensuring fairness and legal integrity in sectional title schemes.