Parking and vehicles

By Zerlinda van der Merwe

We often categorise the issues we experience in sectional title schemes as the “three ‘P’s’ of sectional title living”, namely pets, parking and people, which are more often than not, the cause of all the problems in sectional title schemes. Although this list has been added to over time, the abovementioned three issues remain the favourites. In this article, we will focus on parking.

Prescribed Conduct Rule (“PCR”) 3(1) of Annexure 2 to the regulations under the Sectional Titles Schemes Management Act 8 of 2011 (“STSMA”), provides that the owner or occupier of a section must not, except in a case of emergency, without the written consent of the trustees, park a vehicle, allow a vehicle to stand, or permit a visitor to park or stand a vehicle, on any part of the common property other than a parking bay allocated to that section or a parking bay allocated for visitors’ parking.

PCR 3(2) further provides that the consent granted under subrule (1) must state the period for which the consent is given.

When comparing this conduct rule to its predecessor under the Sectional Titles Act 95 of 1986 (“the STA”), one can see that the rule now provides that vehicles can be parked on common property in the case of emergencies, without the prior written consent of the trustees.

Demarcated visitors parking bays are included in this PCR, and many schemes specifically regulate the use of visitors parking bays in their additional, amended or substituted registered conduct rules.

It is interesting to note that the trustees no longer have the power, in terms of the PCR’s, to cause to be removed or towed away any vehicle parked, standing or abandoned on the common property without the trustees’ consent, unless the scheme amends their conduct rules to grant the trustees this power, which could be extended further to include clamping of these vehicles.

The amended rule should not provide that the trustees may themselves remove or tow away the vehicle, rather that they may arrange for the removal or towing away of the vehicle. By arranging a specialised contractor, the trustees reduce the risk of possible damage to the vehicle, and liability for such damage. However, situations have occurred when the trustees, managing agents or scheme employees have been unsuccessful in their attempts to arrange such a contractor to come out to the scheme to remove or tow away a vehicle. In such a case, clamping of the vehicle may be a better option.

Although the PCR has never provided for clamping of vehicles, the scheme’s amended rules may provide for this action to be taken by the trustees, managing agent, security or other scheme employee.

Bearing in mind that the owner of the vehicle will be liable for the expense of removing or towing away the vehicle, when drafting a rule providing for clamping of vehicles, provision may be made for a release fee or penalty to be paid by the owner of the vehicle before the clamp will be removed from the vehicle. Issues may arise when the owner of the vehicle wishes to remove the vehicle at a time when there is no one available to release the clamp, such as late at night. When clamping the vehicle, it is suggested that a notice be placed on the car, providing the contact details of the party in charge of releasing the clamp.

As with any fining or penalty provision in the scheme’s rules, the rule (and the amount of the fine or penalty imposed) must be reasonable and be enforced through proper procedure.

What To Do About Noise

Sectional title final warning for noise: What should you do?

31/07/2019Graham PaddockPaddocks Press NewsletterNo Comments

So you live in a sectional title unit, and suddenly you get a 
message from the managing agent or trustees saying your 
family is making too much noise. 
The message is headed “Final Warning” and says you 
have broken the scheme’s rules. If it happens again, 
you will be fined.


The complaint may relate to parties, to your children playing 
musical instruments or to the noise of the circular saw you 
have used to make new shelves in your living room. It could 
relate to almost anything. The message is:
“You have made an unreasonable noise. Stop this or you will be fined!”


There are only two provisions in the Sectional Titles Schemes Management Act that
could apply to your situation. These are sections 13(1)(d) and (e). 
They say that an owner must not:


(1) use common property in a way that unreasonably interferes with its lawful use
by others, or
(2) use a section or exclusive use area so as to be a nuisance to other persons
who occupy sections.


So what can you do? Well, if you think you or any people you are responsible for are guilty
of the behaviour described, you can do whatever is necessary to make sure it does not
happen again. And you may choose to respond to the letter by apologizing. Or you may not.


If you don’t think that you or people you are responsible for have behaved in a prohibited
way, here are three possibilities you should consider:
You can write a message setting out your response to the complaint, detailing your reasons
for disputing the complaint. You should do this if you want to get it on record that the
complaint is incorrect or unfair in the circumstances. 
Particularly if the scheme’s rules make provision for the body corporate to impose fines,
as many do, you need to get your response on the record.
If you don’t think that messages are the best way to deal with the complaint, you can ask
the managing agent or body corporate to put the complaint on the agenda at the next
trustee meeting and give you notice of when it is to be held. Then you can attend and
get an opportunity to respond. You have a right to attend trustee meetings and to talk,
but not to vote.
If the trustees are considering imposing a fine, they must give you an opportunity to
tell your side of the story before they do so. So if you get a second letter inviting you to a
hearing at which the trustees will decide whether to impose a fine, know that you are
entitled to be represented by a lawyer at that meeting.


Whatever the outcome, remember that if you consider that you have been treated 
unfairly, you can make an application to the Community Schemes Ombud Service 
for relief. For example, you can apply to have a fine set aside.


Should you require any advice further advice on this subject don’t hesitate to contact 
us at consulting@paddocks.co.za for a no-obligation quote to provide the necessary 
legal assistance.


Graham Paddock is South Africa’s Sectional Title Guru. Graham advises and drafts 
legislation for the Government. His advice is valued by all stakeholder groups in the 
industry.

Article reference: Paddocks Press: July 2019 special edition.

This article is published under the Creative Commons Attribution license.

Important Body Corporate Conduct Rules

The conduct rules below were sent to all owners of Rietvlei Park and are common to all Sectional Title Schemes. One could say that they are simply common sense. Sectional Title members need only consider the following phrase: "Living in a Sectional Title Scheme requires equal measures of consideration and tolerance". 

The rules mentioned in this circular are not all the conduct rules, however, they are the rules that cause the most disharmony in our complex, and no doubt in many others.

CIRCULAR

5 June 2019

All Owners/Residents/Occupants,

 RIETVLEI PARK

We hereby wish to remind all owners that Rietvlei Park is a Sectional Title Scheme and need to abide by the Sectional Titles Management Scheme Act, Rules of Conduct specific for Rietvlei park, and per the STMSA 8 of 2011, with the view to achieve a harmonious environment at Rietvlei Park, which will assist in protecting owners investment, and in order to maintain Rietvlei Park as upmarket scheme.

PETS

Application form is available from the Managing Agent, which first needs to be submitted in order to obtain Trustees consent.

We hereby remind all residents with Consent for a pet that the Consent applies only in respect of the Pet/s applied for, and shall expire upon the death or permanent removal of the Pet/s from the premises.

Note: 

The Trustees and the Body Corporate reserve the right to withdraw Consent if the Conditions are not strictly adhered to.

1. Should the dog be taken for a walk on the common property it must be accompanied by the owner and be on a leash at all times.

2. If the dog defecates on the common property it is your duty to pick it up. Under NO circumstances is it to be left or ignored.

3. Owners EUA, exclusive use garden must be cleaned of all dog defecation on daily basis.

4. The owner may not allow the dog on the common property unattended by the owner or left to wonder night or day on the common property on its own.

5. The dog may not bark thereby causing a nuisance to any other section holder in any form at any time night or day.

AGENT SIGNAGE

Kindly note that ‘For Sale’ signs are allowed to be up against the fence for 60 days, and “Sold Signs” for 14 days.

Owners are to please advise the trustees if they intend selling their unit, and which sales agent will be assigned.

PARKING

Please do not abuse the use of the common property Visitor Bays. 

These bays are not to be used for any other purposes, or frequent ad hoc parking by owners/tenants.  This is not allowed and causes a nuisance to other residents abiding by the rules.

APPEARANCE OF SECTION AND EXCLUSIVE USE AREA

(1) The owner or occupier of a section must not, without the trustees' written consent, make a change to the external appearance of the section or any exclusive use area allocated to it unless the change is minor and does not detract from the appearance of the section or the common property.

(2) The owner or occupier of a section must not, without the trustees' written consent—

(a) erect washing lines on the common property;

(b) hang washing, laundry or other items in a section or any exclusive use area allocated to it if the articles are visible from another section or the common property, or from outside the scheme;

KINDLY NOTE:

STSMA 8 of 2011, Conduct Rule 7(4) states that:

“The owner or occupier of a section is obliged to comply with these conduct rules, notwithstanding any provision to the contrary contained in any lease or any other grant of rights of occupancy.”

 Your tenant is legally bound to comply with the rules as per the Conduct Rule.

The Sectional Titles Schemes Management Act PMR 3(2) states:

“that a member must take all reasonable steps to ensure compliance with the conduct rules by any tenant or other occupant of any section or exclusive use area, including the member’s employees, tenants, guests, visitors and family members.”

 It is the duty of an owner to ensure that his or her tenants and other occupiers, including employees, guests and their family members, comply with the rules.

All owners, Residents, Occupant co-operation will be appreciated. 

Thank you.

For and on behalf of:

THE TRUSTEES OF RIETVLEI PARK BODY CORPORATE

Cannabis in Sectional Title Schemes from Paddocks (Thinking Inside The Box)

Cannabis use in sectional title by Paddocks By Paddocks One rule has come to the forefront recently with the legalisation of the use of cannabis within the home. As from 18 September 2018, the Constitutional Court’s ruling led to the official status for cannabis now being “decriminalised”. However, dealing marijuana, selling it on to others, or smoking it outside the confines of your own property, remains illegal. What about smoking it in your section, exclusive use area, or on the common property in a sectional title scheme? In a sectional title scheme, our definition of home is slightly different than in a conventional title setting. In a sectional title scheme, we only own our section, from the median line inwards. Therefore, it would not be legal to sit at the swimming pool, that forms part of the common property of the scheme, consuming (in whichever form) cannabis, as the common property is not owned by us as individual members of the body corporate. Similarly, if my balcony is not part of my section, I cannot stand outside or even in the enclosed balcony smoking a marijuana joint. In our consulting department, we have been receiving a few queries from owners and residents in sectional title schemes enquiring whether they can ask their neighbours to refrain from smoking marijuana within their sections. As this is now a constitutional right, an owner or the body corporate cannot stop the use of cannabis within sections, but can do so if the activity is undertaken on common property. The scheme's rules may not unreasonably restrict an owner or occupiers right to consume cannabis within their section, but the use of may not unreasonably interfere with someone else's lawful use of their property, or cause a nuisance to any other resident within the scheme. However, the definition of reasonable and nuisance is subject to subjective interpretation, which is why we can foresee this topic causing many a dispute in a scheme. Although reference is specifically made to sectional title schemes, the principles set out here apply to any type of community scheme. Therefore, before you light up your joint, take note of where you are standing or sitting!