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Common property rule a violation of privacy?

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This week, the Property Poser experts deal with a double dose of queries from readers. The first question concerns a rental deposit, while the second involves the common property in a sectional title complex.

In the first scenario, the reader rented a residential property and paid over a deposit. All went well until the reader gave her notice and subsequently vacated the property.

The following day, she contacted the landlord to arrange to return the key and get her deposit back so she could use it to cover the rental deposit on her new premises.

The reader says the landlord proceeded to tell her that he did not have the deposit and, to make matters worse, did not know when he would be in a position to pay the monies back.

The second question comes from a reader who recently bought a townhouse but feels she has no privacy as members of the body corporate access her yard as they see fit.

The reader explains that although the yard is enclosed with a wall and gate, she is not permitted to lock the gate as the area forms part of the complex’s common property.

Furthermore, the bathroom window is close to this entrance and this makes the reader somewhat uneasy as she feels that her privacy is being violated. She would like to know what her rights are.

Regarding the first query, Sean Radue of Radue Attorneys in Port Elizabeth says the Rental Housing Act prescribes that the landlord must, on acceptance of the deposit, bank it in an interest bearing account for the benefit of the tenant, subject to certain provisions and permitted deductions.

“On the face of it, the landlord has committed an unfair practice and our reader should seek redress under the Act by referring the matter to the Rental Housing Tribunal.”

Radue says the tribunal was established under the Act to deal with instances such as this.

“A ruling by the tribunal can be acted upon as if it was a judgment of the Magistrates’ Court and carries the same authority.”

On the second issue, Radue says it is important to distinguish between the section and common property.

“The section is the area that belongs exclusively to the holder while the common property falls under communal ownership.”

Radue says the walled off nature of the area would seem to indicate that it forms part of the section but this would be easily determined by a look at the sectional plan.

“It could also constitute an ‘exclusive use’ area, which, as the name suggests, allows for it to be used exclusively by the owners of one or more sections.”

It technically remains part of the common property but is not open to all and the unit owner would be responsible for its upkeep, says Radue.

“Any dispute could thus be eliminated and our reader could nip the potential voyeurism in the bud or take proper privacy precautions in future.”

It seems odd that the agent or seller did not point out the possible issue with the yard, says Radue.

“If it is indeed common property, this would be a material concern and a prospective purchaser would be entitled to know what he or she is buying.”

If the reader was misled and purchased the unit with the belief that the enclosed area formed part of her section or an exclusive area, Radue says she may well have a legal claim.

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Fullstop

Full Stop Communications is a public relations consultancy in Port Elizabeth in the Eastern Cape of South Africa focusing on media relations and copywriting. We drive regional and national media campaigns in a number of fields, most notably in the property, legal and sports arenas. We also specialise in media monitoring, ghostwriting, editing, translation and advertising. See more articles by Full Stop.