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Q: I live in an estate and we have a problem in that some residents are reluctant to pay their levies.

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A few of them won’t pay at all until the homeowners’ association takes legal action. This was happening even before Covid19 so is not just a symptom of the lockdown.

It is not fair that these owners can continue to enjoy all the benefits of living in a gated community without paying their share of what it costs to provide those benefits.

A: Prevention is always better than cure. The association can take levy arrears matters to the office of the Community Schemes Ombudsman or take conventional legal action through the courts to get a debt judgment against a levy defaulter but both courses of action are likely to take a considerable time and incur costs.

As an alternative, the association should have measures to give it the leverage to make defaulters pay up without the need to go to court or to the ombud. 

One such measure is to add a “suspension of access” provision to the memorandum of incorporation or constitution. While the association cannot legally stop any owner from driving through the estate to their home or enjoying the protection of the security system, and cannot disconnect the electricity or water supply, it can deactivate access and stop defaulters from using any automatic or biometric entrance systems cards (so they will have to sign in and out manually like visitors).

An amended memorandum might also prevent defaulters from using the communal facilities. This kind of inconvenience will often induce defaulters to quickly get their levy payments up to date.

Any change to the memorandum of understanding will need to be approved at a meeting of all homeowners’ association members. They will then need to be registered with the Companies and Intellectual Property Commission . – Gerhard Kotzé, managing director, RealNet estate agency group


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