Advice needed on the legal side

[etwylite]

Well for the first part, each unit pays for it's own area at a certain fee per month, but that is each owner's responsibility. i prefer to do my own mowing for instance. Common property is charged as a lump sum divided amongst the 29 units in the complex.
Ok I see what you are saying on the negligence. Well even if that is the case, that it was willful negligence on the Trustees part it would be tricky to do that since none of them are Trustees anymore and some of them are not even in the complex anymore.

Thanks for the reply!

I think you are missing the point. Are your gardens actually registered to you as part of your section or are they exclusive use areas?

Just because something happens to be done a certain way over time does not make it the right way. Eg. If all 29 units are identical then you can divide the common property costs exactly by 29, however if any 1 has a single variation in square meterage then each needs to pay based on their PQ - that is the law.

 

[Ho3n3r]

Good questions with multiple angled answers. Well, firstly we don't know and we don't know. That was a different time, different people. I think the Managing Agent may then have been responsible for the accounts (I stand to be corrected). In the mean time bank accounts were changed as well (beginning of this year as access to the old account was problematic)
See, the last few years seems to have been messy on the management and trustee side here. i am trying to pick up pieces of many years of mismanagement.


Mmm, ya if we repay that would be the way to go, if possible. The problem is that she MAY have cancelled with the garden service directly, initially I think that is what she said, it changes from time to time. I slowed the thing down now and are asking her to put her case and date of cancellation etc in writing for us so we can have some concrete stuff to work with.

If she cancelled directly with the garden services and not with the BC instead, my personal opinion is that you may have a case, as I'm thinking there may be a negligence from her side to follow the right channels.

The problem, though, is if she did indeed cancel through someone from the BC/trustees at that time, and it goes to court, and she can track down this person and get them to support her case, this may not go down well for you.

Regardless, put yourself in this lady's shoes: you're paying R100 or whatever per month extra for 5 years for a service you never get, and never get made aware of it as the levy is just one amount on the levy. Now you find out you've paid 6 years for something you never got. Wouldn't you want your money back?

It's not really like she did anything wrong in this case, if she followed the correct channels at the time, so in that case it wouldn't be fair to punish her for someone else's mistake.

I re-iterate: IF she did it the right way.

 

[James Cready]

If she cancelled directly with the garden services and not with the BC instead, my personal opinion is that you may have a case, as I'm thinking there may be a negligence from her side to follow the right channels.

The problem, though, is if she did indeed cancel through someone from the BC/trustees at that time, and it goes to court, and she can track down this person and get them to support her case, this may not go down well for you.

Regardless, put yourself in this lady's shoes: you're paying R100 or whatever per month extra for 5 years for a service you never get, and never get made aware of it as the levy is just one amount on the levy. Now you find out you've paid 6 years for something you never got. Wouldn't you want your money back?

It's not really like she did anything wrong in this case, if she followed the correct channels at the time, so in that case it wouldn't be fair to punish her for someone else's mistake.

I re-iterate: IF she did it the right way.

I do feel a lot of empathy for her definitely. Problem is, she did not follow the correct channels. Well, at least she keeps changing her story and has no written proof to back herself up. One day she says she cancelled with the garden service, then she says that she phoned the managing agent, now the latest is that "the Turstees back then knew I was putting in pavement, they were at my house and saw that we did it", she therefore assumes that they should've known that she no longer needs garden services and therefore they needed to cancel it. That part ticks me off a bit see.

Furthermore, try to imagine the following: You get your levy account each month and on there you are being charged for garden Service, say R 100.00 each month. So now you go and cancel the Garden Service, but the next month you still get the R 100.00 on your account for Garden Service. Would you know immediately query it? Call someone, speak to the Trustees? Surely you would. In fact that happened to me a few months ago. I used the Garden Service here and then decided to cancel it, but the next month I was still being charged for it on my levy account. What did I do? I contacted the powers to be and said "I cancelled, I am emailing you the proof of my cancellation now". The next month I was credited for the month that I was charged incorrectly.

This lady, when asked why she didn't do the same, says "we assumed that that was for the little piece of lawn in front of the unit" (which is clearly on common property, everyone knows that). See, that doesn't make sense, you pay R 100.00 for a particular service, then you cancel it, but you still keep getting charged for it because you thought that, what you are still getting the service? But 5 years later you insist that you cancelled it back then.
And fact is, the only reason this lady became aware of this, is because a new trustee here picked it up, by chance, recently.

I would love to just pay the money back each month for the next 5 years, but I fear that we may have other owners really not liking it, especially since this lady did it in this way.

 

[Ho3n3r]

I do feel a lot of empathy for her definitely. Problem is, she did not follow the correct channels. Well, at least she keeps changing her story and has no written proof to back herself up. One day she says she cancelled with the garden service, then she says that she phoned the managing agent, now the latest is that "the Turstees back then knew I was putting in pavement, they were at my house and saw that we did it", she therefore assumes that they should've known that she no longer needs garden services and therefore they needed to cancel it. That part ticks me off a bit see.

Furthermore, try to imagine the following: You get your levy account each month and on there you are being charged for garden Service, say R 100.00 each month. So now you go and cancel the Garden Service, but the next month you still get the R 100.00 on your account for Garden Service. Would you know immediately query it? Call someone, speak to the Trustees? Surely you would. In fact that happened to me a few months ago. I used the Garden Service here and then decided to cancel it, but the next month I was still being charged for it on my levy account. What did I do? I contacted the powers to be and said "I cancelled, I am emailing you the proof of my cancellation now". The next month I was credited for the month that I was charged incorrectly.

This lady, when asked why she didn't do the same, says "we assumed that that was for the little piece of lawn in front of the unit" (which is clearly on common property, everyone knows that). See, that doesn't make sense, you pay R 100.00 for a particular service, then you cancel it, but you still keep getting charged for it because you thought that, what you are still getting the service? But 5 years later you insist that you cancelled it back then.
And fact is, the only reason this lady became aware of this, is because a new trustee here picked it up, by chance, recently.

I would love to just pay the money back each month for the next 5 years, but I fear that we may have other owners really not liking it, especially since this lady did it in this way.

Yeah that sounds clueless. If she herself doesn't even know who she spoke to, and even claiming they just knew, I can't see her getting any part of her story straight enough to actually prove that she was unfairly deducted.

If I were you, I'd just wait it out. If it goes to court, she'll be screwed anyway if she alters her story that much.

 

[James Cready]

Yeah that sounds clueless. If she herself doesn't even know who she spoke to, and even claiming they just knew, I can't see her getting any part of her story straight enough to actually prove that she was unfairly deducted.

If I were you, I'd just wait it out. If it goes to court, she'll be screwed anyway if she alters her story that much.

I just went to deliver a letter to her in which we are simply asking questions about, when exactly she cancelled, how she cancelled, whom she cancelled with, how she informed the Trustees, does she have it in writing, how did she come to realize that she was still being charged, why she didn't notice it earlier but only after so many years etc. So we'll wait and see what she says.

On the other hand the managing agent is telling her that the money is in the body corporate's account and that we must just pay it back. But it's not that simple, firstly we do not have access to the account that was used, we setup a brand new account this year because the old account was a mess. And secondly, as far as I know, the managing agent controlled the finances of the body corporate back then. It may just come back to the managing agent at the end.

 

[Ho3n3r]

I just went to deliver a letter to her in which we are simply asking questions about, when exactly she cancelled, how she cancelled, whom she cancelled with, how she informed the Trustees, does she have it in writing, how did she come to realize that she was still being charged, why she didn't notice it earlier but only after so many years etc. So we'll wait and see what she says.

On the other hand the managing agent is telling her that the money is in the body corporate's account and that we must just pay it back. But it's not that simple, firstly we do not have access to the account that was used, we setup a brand new account this year because the old account was a mess. And secondly, as far as I know, the managing agent controlled the finances of the body corporate back then. It may just come back to the managing agent at the end.

Lol. What a mess. If we didn't have our own private full-time gardener, I would have thought that you're part of our complex.

 

[James Cready]

Lol. What a mess. If we didn't have our own private full-time gardener, I would have thought that you're part of our complex.

LOL, and this is one of the simpler matters going on here! When I gave the lady the letter now she again threw the blame over to the Trustees. "They", she says, "must have known that she won't use garden services anymore, they knew we were doing the paving we asked their permission to do it, so they were responsible to make sure that the garden services are cancelled". Just that comment right there makes me lose all empathy with this lady. They should have assumed correctly, but when she assumes incorrectly then it is everyone else's fault.

I don't know how this will turn out, we'll see.

 

[Ho3n3r]

LOL, and this is one of the simpler matters going on here! When I gave the lady the letter now she again threw the blame over to the Trustees. "They", she says, "must have known that she won't use garden services anymore, they knew we were doing the paving we asked their permission to do it, so they were responsible to make sure that the garden services are cancelled". Just that comment right there makes me lose all empathy with this lady. They should have assumed correctly, but when she assumes incorrectly then it is everyone else's fault.

I don't know how this will turn out, we'll see.

Should've replied "But you know mam, assume makes an ass out of u and me!"

 

[James Cready]

Should've replied "But you know mam, assume makes an ass out of u and me!"

Ha ha! I was tempted a few times!

 

[James Cready]

I think you are missing the point. Are your gardens actually registered to you as part of your section or are they exclusive use areas?

Just because something happens to be done a certain way over time does not make it the right way. Eg. If all 29 units are identical then you can divide the common property costs exactly by 29, however if any 1 has a single variation in square meterage then each needs to pay based on their PQ - that is the law.

Mmm, I am not sure I am missing the point on that. Each unit has an enclosed section which is their exclusive use area. If you want the garden service to mow that lawn and look after your garden in that enclosed area, you have to pay a certain, separate fee each month. Common property gardens and lawns gets serviced by the garden services but that fee is divided by 29 and charged as part of the levy to each unit.

The matter I am discussing here is simple, she had garden service for her enclosed area, then she supposedly cancelled it 9with whom is anyone's guess), but she kept being charged that separate fee for 5 years or something. She never said anything, never did anything, she just kept paying it. Now that it was brought to her attention by the new trustees, everyone else must have known that she no longer needed garden services it was everyone else's responsibility to ensure that she won't get charged for it and now everyone else must pay her back that money.

She has no proof of cancellation. There is only garden service invoices for a period showing that they didn't charge for her unit. But the managing agent did the billing, surely, if anyone else, besides her, is responsible then surely it must be the managing agent.

This lady is getting very aggressive, but she refuses to acknowledge even for a second that there was major ignorance on her side, not on the trustees' side. She refuses to acknowledge that she didn't follow procedures or that she should have picked up the incorrect charge on her account for something that she cancelled, in the very first month after cancelling. No rather all other parties involved should've just known.

 

[OHNO]

In my view, I would think it is fair to refund the money that you can see in your records where she was charged, and did not receive the service.

In my view, you do NOT refund if you can not see it in your records.

If she threatens with court, let her go ahead, she would need to proof her case.

I do think it is fair to pay her back if you can see it in your records.

 

[alphabyte]

Karen Key has a very interesting broadcast on SAFM radio on Monday evenings 9 to 10 p.m. where she discusses law issues with various law experts. Periodically they discuss property matters. Why don't you tune in to the program, find out when the next property show is due, and address your issue to her. I am sure they will come up with some good advice.

 

[etwylite]

Mmm, I am not sure I am missing the point on that. Each unit has an enclosed section which is their exclusive use area. If you want the garden service to mow that lawn and look after your garden in that enclosed area, you have to pay a certain, separate fee each month. Common property gardens and lawns gets serviced by the garden services but that fee is divided by 29 and charged as part of the levy to each unit.

The matter I am discussing here is simple, she had garden service for her enclosed area, then she supposedly cancelled it 9with whom is anyone's guess), but she kept being charged that separate fee for 5 years or something. She never said anything, never did anything, she just kept paying it. Now that it was brought to her attention by the new trustees, everyone else must have known that she no longer needed garden services it was everyone else's responsibility to ensure that she won't get charged for it and now everyone else must pay her back that money.

She has no proof of cancellation. There is only garden service invoices for a period showing that they didn't charge for her unit. But the managing agent did the billing, surely, if anyone else, besides her, is responsible then surely it must be the managing agent.

This lady is getting very aggressive, but she refuses to acknowledge even for a second that there was major ignorance on her side, not on the trustees' side. She refuses to acknowledge that she didn't follow procedures or that she should have picked up the incorrect charge on her account for something that she cancelled, in the very first month after cancelling. No rather all other parties involved should've just known.

Sorry to return to this much later, I have been away. FYI Exclusive use areas ARE common property.

 

[Sensorei]

What is morally right is often not the same as what is legally right, but paying her back is the right thing to do.

 

[Thor]

Sounds like a VERY mis managed BEE ANC run body corporate

#JustSaying

 

[saturnz]

Sounds like a VERY mis managed BEE ANC run body corporate

#JustSaying

Body Corporates are essentially co-operative games where the various agents collude for their collective benefit, this is how I think it should be atleast.

However owners are generally competitive, and once one agent in a co-operative game starts to compete by free riding off the co-operative decisions of others, the game starts to fall apart with the end result that everyone tries to free ride off the efforts of others, so nobody does anything.

 

[James Cready]

Sounds like a VERY mis managed BEE ANC run body corporate

#JustSaying

It was indeed, we are trying to dig the complex out of about 30 years worth of mismanagement, not that simple unfortunately.