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

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!

New Trustee's or thinking about it.

Top 5 tips for first time sectional title trustees by Paddocks

By Paddocks

The trustees in sectional title schemes are elected at the annual general meeting (“AGM”) and very often the same people are elected year after year. Even if new trustees are elected there is usually someone who has been a trustee before and knows the ropes. It is possible though, that an entirely new board of trustees is elected. In this article, we will look at the basics that these new, inexperienced trustees need to know, especially if the body corporate does not employ a managing agent and is self-managed

1. Get educated

To manage a scheme effectively and legally, the trustees need to be pretty familiar with the Sectional Titles Schemes Management Act (“the STSM Act”), the scheme’s management and conduct rules and the Sectional Titles Act. Additionally, they need to know the provisions in the Community Schemes Ombud Service Act regarding dispute resolution, the Community Schemes Ombud Service “the CSOS” levy and the CSOS regulations on duties of scheme executives and fidelity insurance.

There is a host of other legislation they need to know about, some of it in detail. The local municipal by-laws, and occupational health and safety and labour legislation all spring to mind.

The trustees need to have ready access to the scheme’s records, particularly the financial and maintenance records, the sectional plans and the minutes of previous and future meetings.

2. Make sure the annual contribution is raised properly

A vitally important task the trustees must complete very soon after they are elected at the AGM is to meet, elect a chairperson and take the trustee resolution raising the annual contribution. The members must be notified in writing of their liability to pay the contribution within 14 days of the AGM. If the trustees do not take this resolution, the members are not legally liable to pay the contribution and it will not be possible for the body corporate to recover arrears from members who do not pay.

3. Your duty is to the body corporate

The STSM Act provides that the trustees have a fiduciary relationship to the body corporate. While the body corporate is made up of the owners in the scheme, it is a legal entity separate from them and it is to this entity that the trustees owe their fiduciary duties of skill, care and diligence, not to the individual members. The trustees’ test of what they do is always, “is this in the best interests of the body corporate?”

4. Do not use your position to further your own interests

As most trustees are volunteer owners, the STSM Act protects them from personal liability for ordinary mistakes and requires the body corporate to indemnify them from any loss or expense they suffer while doing their trustee duties, except for breaches of their fiduciary relationship to the body corporate.

However, if the body corporate loses money, or a trustee benefits economically because of something the trustee did that was in breach of their fiduciary relationship to the body corporate, that trustee is personally liable for the loss the body corporate suffered, or must pay to the body corporate the economic benefit they made.

5. Act only within the powers of the trustees

The trustees perform the functions and exercise the powers of the body corporate. The STSM Act lists these functions and powers – and of course also makes a catch-all “whatever else is reasonably necessary” provision, but the functions and powers of the body corporate are specific and limited to the control, management and administration of the common property for the benefit of all owners. The trustees must therefore be very careful not to do anything that is outside of these listed functions and powers or outside the spirit of those functions and powers. For example, one of the common abuses of body corporate power that trustees make is in authorising operations that constitute improvements to the common property without the input of the members.

New

Types of Owners in Sectinal Title Schemes

In the past three years the body corporate has not had a quorum at their AGM, when this happens the meeting has to be reconvened. In this case all owners are informed of the fact that there weren't enough people present at the AGM to form a quorum. It has always surprised me that there are no new faces at the second meeting - the same people that made the effort to attend the scheduled AGM are present for the reconvened meeting.

Since I have been involved in the Rietvlei Body Corporate for the past 24 years or so, it shouldn't surprise me. But three years in a row, that's got to be a record in the 56 000 sectional title schemes in South Africa.

While researching this phenomenon I came across the article below - which type of owner are you?

The engaged, the entitlement, and the apathetic sectional title owners

I addition to the four types or categories of owners Dr Sayed Iqbal Mohamed identified, there are three more, namely the engaged, the entitlement and the apathetic.
The engaged sectional title owner is involved in the affairs of the body corporate, attend meetings and demonstrates interest. They are often in the minority and often avail themselves to be nominated and elected as trustees. Those not holding office as trustees can be relied upon to support the trustees.
Those sectional title owners with an entitlement attitude often do as they please when it pleases them. They do not respect the rights of others and do not adhere to the rules. They seldom attend meetings, but are quick to squeal when what they believe they are entitled to, gets affected.
Many sectional title owners are apathetic. It is as if they believe they bought a section and that is it. They act as if the common property is none of their concern. They do not attend meetings. They expect things to run smoothly, but consider everything someone else’s responsibility.
Source: http://www.psychsoma.co.za/sectional_title_living/a_member_of_the_body_corporate/ 


Steve McDonagh
Chairman (RPBC)