LEVY DEBT PRESCRIPTION

What is “prescription”? Prescription is when a debt (an obligation to pay money to a third party) is extinguished after a period of time.
Section 11(d) of the Prescription Act 68 of 1969 provides that a debt prescribes after three years. The starting point being from when the amount becomes due and payable. While the law around prescription differs somewhat in a Homeowners Association (HOA) to a sectional title scheme (Body Corporate), the card is often played by the debtor in a court of law or CSOS. If a HOA is a registered company, the scheme has a real right in that every member’s title deed is endorsed, and the owner is bound in terms of membership and the levies they owe. In such an instance, the debt does not prescribe.
What about sectional title? The law of prescription became effective on 1 December 1970, before sectional titles schemes came into effect. The legislators may not have envisaged how this legislation was to affect Body Corporate members. The first Sectional Titles Act (STA) was only promulgated on 30 June 1971, and it came into operation 30 March 1973.
Governing bodies generally preside over the actions and conduct of a juristic entity, such as the board of directors of a company. A Body Corporate, however, is not a company. It is a unique juristic entity born of statute. Trustees are not directors of a company, and the shareholders of a company are not the same as the members of a Body Corporate. In contrast a Body Corporate comprises of its members jointly, who elect amongst themselves Trustees to represent the Body Corporate at each Annual General Meeting (AGM). If a Body Corporate is sued, and judgement is obtained, each member is affected (section 15 of the Sectional Titles Schemes Management Act). The term ‘Body Corporate’ and ‘governing body’ are synonymous in nature. It is therefore a logical conclusion that a member of a Body Corporate is a member of a governing body within the meaning of section 13(1)(e) and (i) of the Prescription Act. Prescription is therefore always delayed.
Having said the above, courts have been known to rule against Body Corporates for failing to stop prescription in a 3-year period.  
There are various actions that stop prescription such as:
A debtor’s acknowledgement of the amount owing in writing (or a verbal recording which would require consent)
A summons
A payment
A good managing agent will ensure that appropriate action is taken, and that prescription should never apply. Trustees are also cautioned against engaging with members directly to discuss arrear levies. Leave these difficult conversations to your managing agent, who will do their best to ensure the cash flow of the scheme is sufficient to meet its obligations.

Share your love

Leave a Reply

Your email address will not be published. Required fields are marked *