Time and tide wait for no man
MAIN IMAGE: Auren Freitas dos Santos, community schemes specialist attorney
By Auren Freitas dos Santos
“The members of my body corporate took a decision at our annual general meeting, held on 10 April 2019, which I believe is unreasonable and I would like to oppose it. Can I refer this matter to the CSOS?”
When I get this type of query, I have to advise the client that they have probably missed their opportunity to refer their dispute to the Community Schemes Ombud Service (CSOS) for relief, even if I agree that they appear to have a valid objection to the decision.
In terms of section 41(1) of the Community Schemes Ombud Services Act (“the CSOS Act”), an application for an order declaring any decision of an association (or an executive committee) to be void, may not be made later than 60 days after such a decision has been taken. In the situation described above, 7 months have passed since the decision was made by the members of the body corporate, and the owner has missed the deadline to request the much needed relief from the CSOS.
Fortunately, in very limited circumstances, section 41(2) of the CSOS Act allows the Ombud to condone the late submission of an application, if the applicant is able to show good cause for the delay. However, if the client is unable to convince the Ombud that the late application deserves condonation, he will be bound by the decision made by the members of his body corporate.
We hope that the illustration of this unfortunate situation will serve as a warning to any person considering approaching the CSOS for an order to challenge a decision which they consider to be unreasonable or invalid.
In order to avoid running into a similar problem, we strongly recommend the following:
- Read draft minutes and stay up to date with all decisions relating to the management and administration of your community scheme.
- Should you become aware of a decision, which you believe is unreasonable or which has an unfair adverse effect on your rights, be sure to refer your matter to the CSOS within 60 days after the decision was made.
- If you are within the specified time limit, please ensure that the relief sought in your application falls within the allowed prayers for relief set out in section 39 of the CSOS Act. As explained in a separate article, failure to ensure that your application falls within the scope of the prayers for relief, may result in the rejection of your application.
About the author: Auren Freitas dos Santos is a community schemes specialist attorney with Paddocks. He is an admitted attorney of the High Court (LLB, LLM) specialising in sectional titles and HOA as well as CSOS disputes. Previously he has been a portfolio manager and legal & compliance officer of a large managing agency.