Exclusive Use Levies, What you need to know

The Sectional Titles Schemes Management Act (STSMA) and its Prescribed Management Rules (PMRs) and Prescribed Conduct Rules (PCRs) provide the framework for the management of sectional title schemes in South Africa. Regarding Exclusive Use Areas (EUAs) and the imposition of levies for their maintenance, the situation is nuanced:

General Principle:

• Section 3(1)(c) of the STSMA mandates that the body corporate must require owners who have exclusive use of a part of the common property to make additional contributions to the body corporate fund to cover costs related to that EUA. These costs include rates, taxes, insurance, and maintenance. This applies whether the exclusive use right is registered or conferred by the rules.

Levy for EUA Maintenance:

• Based on Section 3(1)(c), it is generally mandatory for the body corporate to ensure that owners of EUAs contribute towards the maintenance costs of those areas. This is to avoid a situation where all owners in the scheme subsidize the maintenance of areas that only benefit a specific owner or group of owners.

Body Corporate Generating Sufficient Funds:

• The question arises if a separate levy for EUAs is still required if the body corporate's general funds are sufficient to cover the maintenance of these areas. While the body corporate might have a surplus, the principle of fairness and equitable cost distribution usually dictates that the owners who have exclusive use should bear the financial responsibility for the upkeep of those specific areas.

• Not imposing a separate EUA levy when maintenance costs are incurred for those areas could be seen as other owners subsidizing the EUA holders, which goes against the intention of the STSMA.

• The purpose of Section 3(1)(c) is specifically to ensure that those who benefit exclusively from a part of the common property also contribute to its related expenses, including maintenance.

Exceptions or Considerations:

• Scheme Rules: The rules of a specific sectional title scheme can sometimes outline the responsibilities for maintenance of EUAs differently. If the rules explicitly state that the owner of the EUA is solely responsible for all maintenance and repair costs within their EUA, and not the body corporate, then the body corporate might not impose a levy for this purpose. However, the body corporate would still likely levy for other EUA-related costs like insurance and rates.

• Type of EUA: The nature of the EUA and what constitutes "maintenance" can sometimes be a point of contention. For example, the maintenance of a garden area might be different from the maintenance of a parking bay.

• Transparency and Budgeting: Even if the body corporate has sufficient funds, it is good practice to transparently budget for the estimated costs of maintaining EUAs and allocate these costs to the relevant EUA holders through a specific levy. This ensures accountability and clarity in the scheme's finances.

• High Court Guidance: Recent court cases have provided guidance on how EUA levies should be calculated, emphasizing that they should be based on the actual anticipated costs related to the EUA and should not include contributions to the scheme's reserve fund for general common property maintenance.

In conclusion, while a body corporate might have sufficient general funds, the STSMA generally mandates that a levy be imposed on owners of Exclusive Use Areas to cover the costs associated with those areas, including maintenance. This is to ensure fair and equitable cost distribution. The specific rules of the scheme might have provisions that alter this in terms of who performs and pays for the maintenance, but a contribution towards EUA-related expenses by the EUA holder is usually required.

It is always recommended to consult the specific rules of your sectional title scheme and seek legal advice if there is any uncertainty regarding the interpretation and application of the STSMA and its rules concerning EUA levies and maintenance.

Ficus Trees on Common Property

Decision to Remove Ficus Trees at Rietvlei Park

In a proactive move to protect the structural integrity and maintenance costs of Rietvlei Park, the sectional title trustees have made a significant decision regarding the removal of Ficus trees. These trees, while aesthetically pleasing, posed serious threats to both building structures and drainage systems.

Phase One: Removal Along Unit 33

The first phase involved removing four Ficus trees located along the common property wall adjacent to unit 33. The primary concern was that their roots were encroaching under the foundations of unit 33, threatening potential damage. To mitigate this risk and ensure safety, these trees were replaced with Waterpear trees. This decision aligns with responsibilities outlined in Sectional Title legislation, where trustees are tasked with managing common property for all owners' benefit.

Phase Two: Drainage Issues in Block (I)

The second phase targets four more Ficus trees situated in block (I), which comprises units 69-78. These trees have been causing persistent issues by blocking drains, resulting in costly cleaning services and even pipe replacements for the Body Corporate. By removing these problematic trees, trustees aim to reduce maintenance expenses associated with frequent drain blockages.

The planning is completed for phase two. The next step is to place the order then it's a case of the tree experts (Green Cycle Trees) adding us to their timing plan. Hopefully the work will be completed this month or early March. 

Characteristics of Ficus Trees

Ficus trees are known for their extensive root systems that can spread far beyond their canopy area. This characteristic makes them prone to causing structural damage by infiltrating foundations or disrupting underground infrastructure like pipes. In contrast, Waterpear trees generally have less invasive root systems compared to large ficus species.

Conclusion

The decision by Rietvlei Park's sectional title trustees reflects a commitment to maintaining property values while addressing practical challenges posed by certain tree species within communal spaces. By replacing problematic ficus with more suitable alternatives like Waterpear trees, they ensure both aesthetic appeal and reduced maintenance costs over time.

Living In Rietvlei Park

Why living in a sectional title scheme is a great choice

If you are one of the owners of our scheme, you have made a smart decision to invest in a sectional title property. Sectional title living has many advantages, such as enhanced security, shared costs, access to amenities, and professional management. In this post, we will explore some of the benefits of living in a sectional title scheme and how we can foster a harmonious and respectful community.

What is a sectional title scheme?

A sectional title scheme is a type of property ownership where you own a section of a complex or development, such as a townhouse or an apartment, and an undivided share of the common property, such as the parking areas, roads, gardens, and recreational facilities. You also become a member of the body corporate, which is the legal entity that owns and controls the common property and makes the rules for the scheme.

Our scheme consists of 90 units, each measuring 110 square meters, and covers a total footprint of 4.5 hectares. We have a beautiful open field where children can play and a clubhouse. We also have a managing agent who takes care of the administration and maintenance of the scheme.

What are the benefits of living in a sectional title scheme?

Living in a sectional title scheme has many benefits, such as:

Security: You can enjoy a greater sense of security, as there are more people around, security facilities at the entrance, and high walls around the complex. You also have the support of your fellow owners and the body corporate in case of any emergency or problem.

Cost-effectiveness: You share the major costs involved with the upkeep of the property and the municipal services. You pay a monthly levy that covers the insurance premiums, maintenance of the common property, wages and salaries of the staff, and any water and electricity required for the common property. You only need to pay for your own rates and taxes, insurance for the contents of your unit, your own private garden, and your monthly electricity and water consumption.

Amenities: You get access to amenities that you might not be able to afford if you bought a freehold property, such as a clubhouse. You can also enjoy the open field and the gardens, which add to the aesthetic appeal and value of the property.

Management: You do not have to worry about the management and maintenance of the communal areas, as the managing agent takes care of these things for you. The managing agent also ensures that the rules of the scheme are enforced and that the financial affairs of the body corporate are in order.

How can we create a harmonious and respectful community?

Living in a sectional title scheme also comes with some responsibilities and challenges. We need to respect the rights and interests of other owners and occupants, and abide by the rules of the scheme. The rules are designed to promote a peaceful and orderly environment, and to protect the value and appearance of the property.

Some of the rules that we need to follow are:

Noise: We need to be mindful of the noise that we make, especially during the night or early morning. We should not play loud music, use noisy appliances, or have parties that disturb our neighbours. We should also supervise our children when they play on the open field, and ensure that they do not make excessive noise or damage the property.

Pets: We need to obtain the written consent of the trustees before we keep any pets in our units. We should also ensure that our pets do not cause any nuisance, annoyance, or damage to other owners or occupants, or to the common property. We should keep our pets on a leash when we take them outside, and clean up after them.

Parking: We need to park our vehicles only in the designated parking areas, and not on the common property or on the lawn. We should also not park more vehicles than we are entitled to, or obstruct the access or exit of other vehicles.

Refuse: We need to dispose of our refuse in a hygienic and proper manner, and use the bins or containers provided by the body corporate. We should not litter or dump any rubbish on the common property or the open field.

These are just some of the rules that we need to follow. You can find the full list of the management and conduct rules in the Annexures to these regulations. If you have any questions or suggestions about the rules, you can contact the trustees or the managing agent.

Conclusion

Living in a sectional title scheme is a great choice for many reasons. You can enjoy the security, cost-effectiveness, amenities, and management that come with it. You can also be part of a harmonious and respectful community, where you can interact with your neighbours and share the common property. We hope that you are happy and satisfied with your investment, and that you will continue to support the body corporate and the scheme. Thank you for being a valued owner of our scheme.

Sectional Title Common Property

Owning More Than Your Four Walls: Your Responsibilities for Common Property under the STSMA

Living in a sectional title scheme (STS) comes with many perks, like shared amenities and a sense of community. But with these benefits come responsibilities, especially regarding the upkeep of common property. As an owner, understanding your role in maintaining this shared space is essential for ensuring a smooth and harmonious living environment for everyone.

What is Common Property?

The Sectional Titles Schemes Management Act 8 of 2011 (STSMA) defines common property as "any part of the land or any building or structure on the land that is not a section." This includes things like:

> Building exteriors and roofs

> Lifts, staircases, and corridors

> Gardens, swimming pools, and braai areas

> Parking areas and entrance gates

Your Responsibility as an Owner:

While the body corporate is legally responsible for maintaining and repairing common property, each owner plays a crucial role in upholding these standards. Here are some key ways you can contribute:

Paying your levies on time: Levies fund the body corporate's operations and allow it to carry out essential maintenance and repairs. Timely payments ensure the common property receives proper care.

Reporting defects and safety hazards: If you notice any issues with common areas, like leaking pipes or broken lights, promptly inform the body corporate or managing agent. Early identification can prevent further damage and potential accidents.

Using common property responsibly: Respecting rules and regulations regarding noise, parking, and waste disposal helps maintain the integrity and cleanliness of shared spaces.

Participating in body corporate meetings and activities: Attending meetings allows you to voice your concerns, vote on decisions, and contribute to the overall management of the complex.

Understanding the STSMA and the scheme's rules: Familiarizing yourself with your legal obligations and the scheme's specific rules empowers you to act responsibly and resolve any disputes effectively.

Beyond Legal Requirements:

Beyond the legal framework, remember that common property is an extension of your living space. Taking an active interest in its upkeep enhances the enjoyment and value of your own unit. Simple acts like picking up litter, reporting suspicious activity, or volunteering for maintenance projects can significantly contribute to a positive and thriving community.

By understanding your responsibilities and actively contributing to the upkeep of common property, you can play a vital role in creating a safe, enjoyable, and well-maintained environment for yourself and your fellow residents. Remember, a well-managed STS is a win-win for everyone!

Additional Resources:

Sectional Titles Schemes Management Act 8 of 2011: [https://www.gov.za/sites/default/files/gcis_document/201409/a82011.pdf](https://www.gov.za/sites/default/files/gcis_document/201409/a82011.pdf)

National Association of Body Corporate Administrators (NABCOA): [https://www.southafrica.net/gl/en/business](https://www.southafrica.net/gl/en/business)

By working together, we can make our STS a place we're all proud to call home!

Neighbours in Sectional Title

Living in a sectional title scheme comes with its own set of rules and regulations, and one of the most important ones is to be considerate of your neighbors. This is especially true when it comes to noise, as it can be a major source of conflict between residents. 

It's important to remember that your neighbors have the right to enjoy their homes in peace and quiet, just as you do. This means that you should always be mindful of the noise you make, whether it's during the day or at night. 

Here are some tips on how to be a considerate neighbor:

1. Keep the volume down: If you're listening to music or watching TV, keep the volume at a reasonable level. This is especially important if you live in an apartment building or a townhouse complex where sound can easily travel between units.

2. Be mindful of your pets: If you have pets, make sure they're not making excessive noise that could disturb your neighbors. This includes barking dogs, meowing cats, and squawking birds.

3. Avoid loud parties: If you're planning on having a party or get-together, let your neighbors know in advance and keep the noise level down. You could also consider inviting them over to join in on the fun!

4. Communicate with your neighbors: If you're having issues with noise from your neighbors, try talking to them about it in a calm and respectful manner. They may not even realize that they're being too loud.

5. Consider your neighbors' friends: It's not just your neighbors that you need to be considerate of - it's also their friends and family who may be visiting them. Make sure that they're not making excessive noise either.

By following these tips, you can help create a harmonious living environment for everyone in your sectional title scheme. Remember, being a good neighbor is not just about following the rules - it's about being considerate and respectful of those around you.

Parking

In a sectional title scheme, the rules and regulations are put in place to ensure the smooth functioning and fair treatment of all residents. These rules are typically governed by the Sectional Titles Act and the scheme's management and conduct rules.

Allowing a resident to park in a visitors parking spot, even if there is no shortage of parking in the driveway, could still be considered a breach of the rules. Visitors parking areas are generally reserved for guests or visitors, and using them for long-term parking by residents may go against the intended purpose of those parking spaces.

Breaching the rules, even if it may seem minor, can have implications for the overall harmony and functioning of the sectional title scheme. It can create issues of fairness and may lead to conflict among residents.

It is important for trustees and residents to adhere to the rules and regulations set by the scheme. If there is an issue with parking availability, it would be more appropriate to discuss it with the body corporate or trustees to find a suitable solution that complies with the rules and meets the needs of all residents.

A Message to Animal Owners using Common Property

Sectional title schemes are defined as a form of communal living, meaning that all residents share common areas such as gardens, swimming pools, and parking lots. As such, it is essential that residents respect the communal nature of their living environment and behave in a way that promotes the overall wellbeing of the community. Unfortunately, some residents have been allowing their dogs to defecate on the common property, which is not only unsanitary but also disrespectful to fellow residents.

Firstly, allowing dogs to defecate on common property is a breach of health and safety regulations. Dog feces are a known carrier of bacteria, viruses, and parasites, which can cause severe illnesses such as E. coli and salmonella. In addition, dog feces can attract pests and insects such as flies and maggots, which can lead to infestations and further health hazards.

Moreover, allowing dogs to defecate on common property shows a lack of respect for other residents. The communal areas of sectional title schemes are shared by all residents, and nobody should be subjected to the unpleasant smell and sight of dog feces. Moreover, walking on a lawn or pathway covered in dog feces is not only unhygienic but also unpleasant, ruining the experience of using common areas for all residents.

Secondly, Responsible dog ownership practices can be encouraged. Dog owners should always carry poop bags with them when walking their dogs, and should be encouraged to dispose of the feces responsibly. Resident dog owners in sectional title schemes should also be required to register their pets with the body corporate so that they can be held accountable for their actions.

In conclusion, allowing dogs to defecate on common property is a detrimental and disrespectful practice that should not be accepted in sectional title schemes. It is the responsibility of all residents to maintain a healthy and hygienic living environment that promotes the wellbeing and happiness of all. By establishing clear expectations and enforcing rules, the community can work together to ensure that their communal living environment remains respectful, hygienic and enjoyable.

Who pays for that pipe? A guide to body corporate and owner responsibility in sectional title schemes

14/12/2022PaddocksPaddocks Press Newsletter

By Jennifer Paddock

Who pays?! 

This is the crux of most of the questions we
get from our members of Paddocks Club.

 

As many of you already know, the general rules are that the body corporate
pays for common property expenses and owners pay expenses associated
with their individual sections. But unfortunately it’s not as simple as looking
at the scheme’s sectional plan and identifying the nature of the property.
There are exceptions and provisos in the Sectional Title Schemes
Management Act No. 8 of 2011 (the ‘STSM Act’) that complicate many
maintenance, repair and replacement scenarios and really confuse
owners, trustees and managing agents alike. One of these confusing
areas is liability for pipes within a scheme.

In this article I unpack exceptions to the general rules and hope to provide
clarity on an often misunderstood area of the sectional title law.

1. Pipes within sections

Owners are usually responsible to arrange and pay for all maintenance,
repair and replacement costs of the property that forms part of their section
[section 13(1)(c) STSM Act], including water pipes. So if there is a leak in a
water pipe that forms part of their section, they are responsible to fix it and
pay for those repairs, right?

Well, maybe, but not necessarily, because section 3(1)(r) of the STSM Act
makes the body corporate liable to maintain, repair and replace a pipe
located within a section if that pipe exists to serve other parts of the scheme
(i.e. more than one section or the common property). This is an exception to
the general rules. So if there is a leak or other defect in a pipe located within
a section one needs to ask the question:

‘Does this pipe serve only this section?’

If yes, it’s the section owner’s responsibility.

If no, it’s the body corporate’s responsibility because it serves other parts
of the scheme.  

2. Common property pipes that serve only one section

Now, what about a water pipe located on the common property that exists
to serve only one section? I can’t tell you how many people think that the
‘user pays’ principle applies here. They think that because only one section
owner benefits from the common property pipe, that section owner is
responsible to pay for it. But the STSM Act doesn’t support this view.

The body corporate has a statutory duty to repair and maintain all of the
common property [section 3(1)(l) STSM Act], including common property pipes.
The fact that the pipe serves only one section doesn’t change this responsibility.
In fact, section 3(1)(r) of the STSM Act specifically makes the body corporate
responsible for pipes existing on the land ‘in favour of one section over the
common property’. So if the defect in the pipe is located on the common
property (and not within the owner’s section) the body corporate is legally
responsible to pay for the pipe maintenance, repair or replacement
notwithstanding the fact that the pipe serves only one section. 

3. Pipes in and under exclusive use areas

Ok, let’s tackle an even trickier question. Who is responsible for a pipe
located on or underneath an exclusive use area?

As a starting point we need to understand the legal nature of an
exclusive use area. An exclusive use area is common property,
co-owned by all owners of units in the scheme. Essentially the
nature of exclusive use rights is an agreement between all co-owners
that only one (or some) of them is entitled to use a defined area of
the common property to the exclusion of all other co-owners who,
in the absence of such an agreement, would have equal rights to
use that area.

As mentioned, section 3(1)(l) of the STSM Act requires the body
corporate to repair and maintain all of the common property which
includes exclusive use areas. But the proviso to section 3(1)(c)
requires the holders of exclusive use rights to pay for the costs
associated with those areas. As such, we must distinguish between
the body corporate’s operational responsibility to arrange the
maintenance and repair of exclusive use areas and the financial
responsibility of the holder of those exclusive rights to pay the
associated costs. This is another exception to the golden rules
and can be seen as a fair exchange in the agreement between
the holder of the exclusive use rights and all the other co-owners
of the common property who have agreed to give up their rights
to use that area.

In terms of section 3(1)(l) of the STSM Act, and in the absence of
any valid body corporate rule to the contrary, the body corporate
will always be responsible to arrange for the maintenance and repair
of exclusive use areas. But the answer to the question of ‘who pays’
can be remarkably complex.

Let’s take a look at an example. A unit owner in a sectional title
scheme holds exclusive use rights to a common property parking
pay in the scheme’s parking area. A water pipe runs over the parking
bay taking water into the scheme’s building. The pipe doesn’t benefit
or serve the parking bay in any way. There is a defect in the water pipe
and the defect is in the part of the pipe that is located in the exclusive
use parking bay. We know that the proviso to section 3(1)(c) requires
the holder of the exclusive use rights to pay for the costs associated
with the exclusive use area, but does that include paying for the repair
of this water pipe?

In our view, when considering financial responsibility for exclusive
use area works, two initial enquiries must be made:

1. Where are the boundaries of the exclusive use area? And does
    the defect fall within the exclusive use area’s boundaries? And,
2. What is the designated purpose of the exclusive use area?
   The answer to this question helps us identify what the exclusive
   use right holder has agreed to take financial responsibility for.

The location of the exclusive use area boundaries are crucial in
determining the nature of the property on which the defect is located.
And it’s not always easy to locate the exact boundaries of an exclusive
use area. For rule-based exclusive use areas, we look to the layout
plan attached to the rule which often isn’t precisely to scale. For
registered exclusive use areas, we consult the scheme’s sectional
plan which may or may not include notes providing guidance on
the exact location of these boundaries.

Once we have established the exclusive use area’s boundaries,
if the defect falls within the exclusive use area then we start from
the assumption that the holder of the exclusive use rights is
financially responsible. But before cementing that view, we consider
the purpose of the exclusive use area.

Going back to our example of the water pipe over the parking bay,
this second question of the exclusive use area’s purpose is important.
The purpose is parking of a vehicle and that is what the exclusive use
right holder has agreed to take financial responsibility for. Does the
water pipe running across that parking bay serve the purpose of parking
a vehicle in any way? In this case, no. In our view there is a good argument
to be made that the body corporate must take operational and financial
responsibility for repairing the defect in the common property pipe despite
the fact that the defect is located in an exclusive use parking bay area.
Why? Because the pipe exists to serve the scheme and not the
exclusive use area.

But there isn’t a one-size-fits-all answer to the financial responsibility
for exclusive use area pipes. Imagine an exclusive use area garden
area with a pipe running underneath it. Where are the boundaries of
that exclusive use area? Does the boundary extend below the surface
of the garden, underneath the ground? If so, how far down does it go?
Does the pipe serve the exclusive use garden area? Is there a tap
attached to the pipe? Now, what if the pipe serves a number of
exclusive use gardens but the defect in the pipe is under only one
exclusive use area? Can you see how complex these cases can get?

If you’re struggling with the question of ‘who pays?’ in relation to a
pipe or any other maintenance, repair or replacement issue in a
sectional title scheme, email a brief to consulting@paddocks.co.za 
and we’ll give you a no-obligation fixed-fee quote for expert
sectional title advice.

---

Article reference: Paddocks Press: Volume 17, Issue 12.

Jennifer Paddock is a dual-qualified lawyer with experience
working as a strata title managing agent and solicitor in
New South Wales. Prior to this, she served as a specialist
sectional title attorney and practice manager at Paddocks
for five and a half years. She brings a wealth of knowledge
and expertise to the Paddocks team.
Contact her at consulting@paddocks.co.za.

Three ways to resolve unauthorized common property alterations

 27/07/2022PaddocksPaddocks Press Newsletter

In a consulting matter I dealt with this month, the trustees of a
scheme were undertaking the mammoth task of sorting out
20 years’ worth of unapproved alterations made to the
scheme’s common property.

Many schemes battle with unauthorised common property alterations.
These alterations are often undertaken quite innocently by owners of
sections who mistakenly believe they ‘own’ exclusive use areas
(EUAs) and can therefore build on them without body corporate
approval. They don’t realise that EUAs are in fact common property
and that in order to legally build on or alter their EUA they require body corporate approval via
an ordinary resolution. Prior to 7 October 2016, they required the written consent of the trustees.

In this article I’m sharing three options trustees may like to consider when attempting to clean up
these kinds of en masse unauthorised common property alterations.

1. Approach the local council for assistance

The common property alterations, whether properly approved by the body corporate or
not, may well require written approval from the local authority under the National Building
Regulations and Building Standards Act No. 103 of 1977. As such, if the owners in question
have not obtained local authority approval, they are in breach of the National Building
Regulations which means they are in breach of a law relating to the common property.
Trustees have a duty to ensure compliance with all laws relating to the common property and,
in order to remedy these breaches, it may be possible to have the local council order
individual owners to remove illegal building structures. 

2. Make application to CSOS 

The body corporate could make application to the Community Schemes Ombud Service (CSOS)
on a case by case basis, challenging each owner who has made unauthorised common property
alterations. However, the trustees would need to bear in mind the range of defences that an
owner may raise in response.

For example, estoppel. If, in the past, the body corporate has appeared to consent to the
alterations in some way (expressly or impliedly), then it may be estopped (prevented) from
forcing an owner to remove the alterations. If there has been a significant lapse in time since
the alterations were undertaken and the body corporate has failed to take action on the matter
until now, the body corporate’s inaction could be construed as implied consent. Or, if the unit has
 changed hands since the alterations were undertaken, implied consent could be construed from
the previous issuing of a levy clearance certificate, indicating that there were no outstanding
issues relating to the unit or its previous owner.

Other important considerations for trustees considering this route are the significant financial
and time costs. And, of course, there is always the very real risk that the adjudication orders
may not give the body corporate the desired relief or that the owner may refuse to comply with
the order. 

3. Pass a conduct rule to regularise the alterations

Another approach is to regularise and legalise all alterations that are acceptable to the body
corporate, rather than attempting to have them forcibly removed.

In order to achieve this, a proposed conduct rule can be drafted (preferably by an attorney well
 versed in sectional title management law) and put to the body corporate for approval by special
resolution, approving the existing common property alterations, subject to various reasonable
conditions that protect the body corporate and manage these common property areas appropriately.

If the trustees choose to go this route, it is important to first speak to the local council as council
approval of the existing alterations should be one of the conditions attached to body corporate
approval in the new conduct rule.

Whichever way trustees choose to deal with unauthorised common property alterations, whether
by trying to force removal via the local council or CSOS or by regularising and legalising them,
I recommend getting the majority of owners on board to support the process. Either way, there
are going to be costs to the body corporate, and in the case of regularising and legalising,
a special resolution is required to pass the new conduct rule. So the trustees are well advised to
call a general meeting with this topic on the agenda to get a directive from owners as to how they
should proceed to remedy the illegal alterations.

---

Article reference: Paddocks Press: Volume 17, Issue 5.

Jennifer Paddock is a dual-qualified lawyer with experience working as a strata title managing
agent and solicitor in New South Wales. Prior to this, she served as a specialist sectional title
attorney and practice manager at Paddocks for five and a half years. She brings a wealth of
knowledge and expertise to the Paddocks team. Contact her at 

consulting@paddocks.co.za.

This article is published under the Creative Commons Attribution license.

Back to Paddocks Press – July 2022 Edition.

NOISY NEIGHBOURS'

Living in a Sectional Title Community scheme is not for everyone - this applies more so to people who enjoy socialising with friends in the form of partying often. 

The law in general and certainly in the Sectional Title Schemes Management Act is based on how a reasonable person would act in any given situation.

It would be reasonable to take this to mean that we should apply equal measures of tolerance and consideration. Remember your neighbours also have rights.

Noise issues the trustees and managing agents most often have to deal with are:
    > Neighbour's making a noise while entertaining their guests (socialising)
    > Dogs barking or whining continuously
    > Children running around screaming

Since social activities cause the most friction between neighbours we should highlight problem areas so as to mitigate problems and act in a reasonable way.

Night-time socialising causes the most neighbour on neighbour friction that can end up at the Community Schemes Ombud Service so it would be wise to consider the following issues:

Sitting on your patio at night having a few drinks and talking in normal tones carries to neighbours on both sides - it can even carry further on a still night. If it's 10pm - take the discussion inside - that's the reasonable thing to do. 

Make sure your visitors know that there are rules in a sectional title scheme so they need to behave in a reasonable fashion which means considering your neighbours. 

Dogs that bark or whimper for long periods are more than just a source of noise pollution; they can really disrupt ones mood - especially if its at night when a person is trying to sleep. Dog owners must be more considerate and do all they can to silence their dogs.

Parents at Rietvlei Park are really spoiled by the big secure area for kids to play. However, these same parents may be out of earshot, when the kids are screaming on top of their voices in the field disturbing other residents. The considerate and wise thing to do would be to check on them from time to time. Not to mention instructing them in the simple rule of play but keep the noise down.

The STSMA (The Law) states the following in conduct rule 7:

Behaviour of occupiers and visitors in sections and on common property

7. (1) The owner or occupier of a section must not create noise
likely to interfere with the peaceful enjoyment of another section or another person's
peaceful enjoyment of the common property. 

It goes on to state:

7. (3) The owner or occupier of a section must take reasonable
steps to ensure that the owner or occupier's visitors do not behave in a way likely to
interfere with the peaceful enjoyment of another section or another person's peaceful enjoyment of the common property.

7. (4) 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.

We could leave this post right there, but experience has taught me that quoting the act is sometimes not enough so let's explore some scenarios:

Construction Noise from Alterations:
Your neighbour is undertaking some internal alterations to their unit so there will be some banging and drilling etc. The neighbours of adjoining units and beyond need to be tolerant of this work because they may have done work to their own units or may in the future do some work.

Consideration by Owner and Construction Workers:
The owner of the unit needs to be considerate by starting and stopping the noise generating work at reasonable hours

Tolerating Party Noise:
You have been made aware that your neighbour is throwing a birthday party for their 6-year-old child. This could also be a party with friends for any reason. It would be reasonable to tolerate the noise for a few hours - especially as the party is a day time event.

Party Planning Consideration:
You have informed your neighbours within a reasonable time that you intend to have the party and you have given details of how long it's expected to last and you make every effort to stick to what you have told your neighbours.

General
With party planning, you need to consider factors that would adversely affect your neighbours, like braai smoke. Rietvlei Park faces NNE and the wind is mostly SE which means the wind swirls around the buildings which can blow smoke right into the windows that may be open at your neighbours unit. This needs to be considered. 

I had a neighbour once who one day after work turned his sound system up so loud my lounge wall was reverberating like a loudspeaker. When I approached him about the noise he became aggressive and said "I have the right to play my music as loud as I like in my home"!

 He got the point when I asked if his right superseded my right to enjoy a quiet peaceful silence.

Remember to ask yourself "Am I being reasonable?", and remember "equal measures of tolerance and consideration" are what's needed in sectional title living.

Steve McDonagh - Chairman with 33 years experience living in sectional title

Maintaining and repairing exclusive use areas

By Auren Freitas dos Santos

We deal with a number of disputes relating to exclusive use areas in sectional title schemes. The majority of disputes involve disagreements about who is responsible for maintaining and repairing these areas. The main reason for this is because it is often assumed that an exclusive use area (or EUA) is “owned” by a particular person and therefore that person is assumed to be responsible for maintaining and repairing “their” EUA. 

This assumption is simply incorrect. It must be understood that an owner who enjoys exclusive use rights to an area of common property, whether registered or in terms of the rules, does not acquire “ownership” of that area, but rather an entitlement to use a defined part of the shared common property. In other words the EUA remains a part of the common property, and as such, all owners of sections in the scheme own these areas in undivided shares.

Because EUAs form part of the common property, the body corporate retains the primary responsibility to organise and carry out any maintenance or repair in respect of these areas. Therefore the body corporate cannot demand a person, who enjoys the rights to an EUA, to carry out the required remedial work. As with any other area of common property, the body corporate is obliged to carry out the remedial work. 

It is important to note however, that although there is no obligation on the holder of an exclusive use right to maintain or repair the EUA, there is a financial obligation to reimburse the body corporate for costs of maintenance and repairs undertaken by the body corporate.

The Sectional Titles Schemes Management Act makes it clear that the holder of the exclusive use right is responsible for all of the costs relating to these areas, including the costs of repairs and maintenance, and it prescribes the manner in which these costs must be recovered from the owner concerned.

Extract from Paddocks: Thinking Inside The Box June 24 2020

Regulation of the behaviour of owners and occupiers in sectional titles schemes

By: Professor 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.

Picture by Steve McDonagh

In this article, I briefly examine the behavioural regulations in the Act and the prescribed rules and also discuss what additional types 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. Paddock has specialised in sectional title, home owners' associations and other forms of community scheme law for over 40 years.

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