Regulating the behaviour of owners and occupiers in sectional titles schemes

Regulating the behaviour of owners and occupiers in sectional titles schemes

MAIN IMAGE: Graham Paddock is considered an authority on South African sectional title scheme management law.

By Graham Paddock

The owners and occupiers in residential sectional title schemes live close to one another and share the use of the common property, so their behaviour is subject to various types of regulation. The restrictions that apply to behaviour in sectional title schemes are found in the Sectional Titles Schemes Management Act 8 of 2011 (“the Act”) as well as in a scheme’s management and conduct rules.

In this article, I briefly examine the behavioural regulations in the Act and the prescribed rules and also discuss what additional types of provisions can be included in each of the two types of scheme rules.

Sectional Titles Schemes Management Act

The long title to the Act confirms that it exists “To provide for the establishment of bodies corporate to manage and regulate sections and common property in sectional titles schemes and for that purpose to apply rules applicable to such schemes; … .”

Sections 13(1)(d) and (e) are the only provisions in the Act that impose behavioural obligations on owners. In their use of the common property, owners must not unreasonably interfere with the rights of others. In addition, they must not use or permit the use of a section or an exclusive use area to cause a nuisance. In other words, owners must not cause or allow material prejudice to others in their use of their sectional property. Subject to this principle, to any other law and to the scheme rules dealt with below, owners are free to do what they like in the sections and exclusive use areas that are set aside for their private occupation, and to make reasonable use the common property.

Management rules

Management rules exist to specify in detail how the body corporate’s operations must be carried out and they also set out the rights and duties of its trustees and members. These rules, like the conduct rules dealt with below, must be reasonable and apply equally to all owners of units. The body corporate can amend and add provisions to its management rules by passing a unanimous resolution and having the new rules approved by the Community Schemes Ombud Service (CSOS). Any management rules made initially by the scheme developer or later by the body corporate must deal with body corporate management issues in a manner appropriate to the scheme.

Prescribed management rule 30 obliges the body corporate to take all reasonable steps to ensure that a member or any other occupier does not breach the provisions of the Act referred to above or use a section or exclusive use area irregularly.

In practice this means that the body corporate cannot ignore behaviour that is a nuisance or an unreasonable or illegal use of common property. If the body corporate, any member or other occupier is seriously prejudiced by such behaviour on an ongoing basis, the trustees must take active steps to deal with the issue.

In terms of prescribed management rule 3(2), a member is obliged to take all reasonable steps to ensure that his or her employees, tenants, guests, visitors and family members comply with the scheme’s conduct rules.

A body corporate cannot “entrench” a behavioural restraint on owners or occupiers of sections by including this in a management rule. Any rule that governs the conduct of owners or occupiers can only be included in the scheme’s conduct rules.

Conduct rules

A scheme’s conduct rules exist to regulate the behaviour of owners and occupiers, setting out their rights and in their use of sections and the common property.  These rules regulate a range of issues that have the potential to cause nuisances and dangers to others or to negatively impact the value of other properties in the scheme. The body corporate can amend its conduct rules by passing a special resolution and having the new rules approved by the CSOS.

The prescribed conduct rules cover the keeping of animals, reptiles and birds, refuse and waste disposal, vehicle parking, damage to common property, changes to the exterior appearance of sections and exclusive use areas, the storage of flammable materials, behaviour generally and the eradication of pests.

A body corporate can make additional conduct rules that deal with the behaviour of owners and occupiers in their use of their sections and the common property. Any such additional rule will be valid if it serves to regulate, in a manner appropriate to that scheme, a particular activity so as to ensure that it does not prejudice others in their use of their sections, exclusive use areas and other common property.

A provision that deals with the management or operations of the body corporate cannot be included in the scheme’s conduct rules, but must be passed and approved as a management rule.

About the author: Considered by many to be the authority on Sectional Title scheme management law and practice in South Africa, Prof. Graham Paddock has specialised in sectional title, home owners’ associations and other forms of community scheme law for over 40 years. If you have any sectional title questions, feel free to contact Paddocks via email at consulting@paddocks.co.za or on 021 686 3950, for a no-obligation quotation.

Showing 9 comments
  • Wendy Shawe
    Reply

    I am hoping you will be able to assist us with a problem that has arisen in our Sectional Title block of flats. Some owners let out their flats to short term holiday makers. Under normal circumstances this is not a problem but occasionally and particularly very recently we have had to contend with loud noise from these people when they arrive home early in the morning … 3.30 am for example. This weekend when we confronted one of them the men became very cheeky. We have a point in our conduct rule stating that excessive noise will not be tolerated. My question is this….can our trustees stop short term holiday letting in our residential block. Thank you.

    • Helene Meissenheimer
      Reply

      Hi Wendy, I am working on getting an expert legal opinion for you on this. Keep an eye out for this week’s Property Professional newsletter. Ed.

  • Sarah
    Reply

    Good Morning,

    I am hoping you will provide some resolution to a problem I have with the estate agent of the complex i reside in. There are endless issues with the estate agents, they can never seem to find my payments made to them regarding my levy’s and water & lights bill, they also seem to add an ombudsman fee to my water bill, which never got answered to when the query was raised. The body corporate of my complex also do not seem to provide feedback when these issues are raised, regardless of the multiple emails sent. My question is, how do I deal with such unprofessional and seemingly very poor administration of my account (which i may add, i personally feel that are being mismanaged by both the body corporate & the estate agent)

    Thank You

  • Isabel
    Reply

    Morning
    We have a spouse (or ex spouse) of an owner in our complex. He is a non-owner.
    He interfere with everything, sending emails to managing agents demanding things and complaining about things that has nothing to do with him.
    Is he allowed to do that?
    As far as I understand, the MA does not have to communicate to him anything, only to the owner??

  • Shoba
    Reply

    Good Day, I am a property owner in a sectional title property. The property has an existing unsheltered patio. We would like to put on a shelter as when it rains the water collects at the door.

    However the Body Corp says that we need to draw up a plan and get it registered at the Deeds Office. This was not done before and almost all the units have put up the same kind of shelter.

    Please advise me if this is the norm and do I need a plan certified by the Deeds Office to just put a roof over the existing patio?

  • Ena du Toit
    Reply

    Who can I contact for professional advice or can I get advice on the questions hereunder on this platform?

    Additions and improvements and approvals thereof at sectional titles;

    Sectional titles and full titles in one complex – does a complex with this combination fall under the Sec Title Act;

    Does the Sectional Title Act 2011 “overrule” older constitutions in sec titles?

    Is the 80 % majority approval on additions and improvements in the Act applicable for all sectional title complexes?

  • Links
    Reply

    Good day a unit owner in our complex recently installed a electric fence on the boundary wall between their unit and their neighbor surely this is not allowed as the boundary wall forms part of common property?

  • Jan Botha
    Reply

    Hi we have asked the body corporate trustee for a free remote and they have refused. The second option is with cell phone only and now that is an issue as the gate is not opening some times. What can we do?

  • Lizette
    Reply

    Good day, we are property owners in an estate and the estate rules stipulates one dog per yard, but it is not limited to one only, on application. We have applied prior to our move. The request was never looked at and only after 4 months of living in our house, did we receive letters from the body corporate stating we are only allowed one dog as per the conduct rules (even though it stipulates you can apply for more than one dog and they cannot refuse without good reason). One dog is 13 years old, weighs only 3.2kg and has a heart condition, the other one is 3 years old. We are not receiving any feedback after questioning penalties (same amount as monthly levy!) per month because of the 2 dogs on our property. Now we are refused any voting rights on the AGM because we refuse to pay the penalties (it has not been resolved…. why should we be fined if there is no resolution?). Should we get a legal opinion on the matter? Can they refuse us voting rights or discussion of this exact point on the AGM because we refuse to pay our fines (which is still not applicable due to non resolution of dispute, in our opinion)? I really hope this makes some sense because we are frustrated that they are bullying us into getting rid of one of our dogs (contradicting their own conduct rules).

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