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)

Excusive Use Area's (EUA)

Exclusive use in Sectional Title Schemes – benefit or burden? by Paddocks

By Anton Kelly

The concept of exclusive use is unique to sectional title schemes. It means that although all owners own all the common property in undivided shares, they can agree that one owner (or perhaps a few owners) can use a specified portion of their co-owned property, and no other owner will use it.

So there is benefit to the owner who holds the rights. But, as the old saying goes, there are no free lunches, and the exclusive use of common property comes at a cost, which is a burden. Let's weigh up the benefits and burdens of holding exclusive use rights.

Benefits of exclusive use in sectional title schemes

The first and most obvious benefit is that the owner who holds exclusive use rights over a portion of common property can use the area and other owners can't stop that use or use the area themselves.

Secondly, exclusive use rights increase the market value of the property, particularly if the exclusive use rights are over parking areas.

An owner who has rights of exclusive use may be able to improve the area, by adding a structure or making a building improvement to the area. All that is required to authorise the alteration to the exclusive use area (EUA) is the consent of the body corporate by ordinary resolution. However, the body corporate cannot consent to the alteration if it constitutes the extension of the section or the creation of a new section. There are other processes and resolutions required for those! Click this link to find out how it’s done.

An owner can rent out the exclusive use area to another owner, if it is not needed. For example, if an owner only has one car but has a garage and an EUA parking bay.

Finally, although this is a technicality, registered exclusive use rights can be traded among owners, so they have independent value, other than the value they contribute to the property.

Burdens of exclusive use in sectional title schemes

It's worth repeating at this stage that exclusive use areas are common property, owned by all the owners together in undivided shares, and so EUAs are the responsibility of the body corporate to maintain. Owners are only obliged to keep their EUAs neat and clean.

However, the Sectional Titles Schemes Management Act (SMSTA) requires the body corporate to charge owners with exclusive use rights an additional contribution, on top of their ordinary annual levies, to cover the costs the body corporate has with respect to the area. Examples, in addition to maintenance, are insurance and supply of water and electricity.

A common issue with the additional contribution for EUAs is that calculating the amounts individual owners must pay can be very complicated, and few bodies corporate do it properly. The result is that when a big expense comes along such as water proofing a patio, replacing shade cloth parking canopies, or removing a large tree from a garden, owners can be charged substantial amounts in addition to their EUA "levies".

Exclusive use rights are definitely a benefit to sectional title owners. One can have one’s "own" garden, parking bay, store room or even swimming pool, but use is not free and one might not have any say or control over what or when maintenance is done. If you have any difficulties regarding exclusive use please contact consulting@paddocks.co.za for a no obligation quotation for advice.

Photo by Sina Khansari on Unsplash

Paddocks | February 14, 2018 at 8:16 am | Tags: benefits of EUA, exclusive use areas, exclusive use rights, improvement to exclusive use area, STSMA, who pays for exclusive use area | Categories: Exclusive Use Area, sectional title scheme management | URL: https://wp.me/p3kh9U-pp

Windows & Doors

Responsibility to repair and replace windows and doors

30/05/2018  

I often get queries on who is responsible for the maintenance (including repair or replacement) of windows and doors within sectional title schemes. In this article, I will address the financial responsibility for maintenance of the windows and doors (including garage doors).
In order to answer these questions I will examine:

• What divides a section from the common property?
• What forms part of the section and what forms part of the common property?
• Who is responsible for the maintenance?
• How is replacement authorised?
• Who is responsible for the costs?
• How can the costs be funded?
• How are these costs allocated between owner and body corporate?

A draft sectional plan must define the boundaries of each section in the building. The common boundary between two sections, or a section and common property is the median line of the dividing floor, wall or ceiling as the case may be. The boundaries of a section are defined by reference to the floors, walls, and ceilings thereof, or as may be prescribed, provided that any window, door (including garage doors) or other structure which divides a section from another section or from common property, are considered to form part of such floor wall or ceiling.
The “median line” in the context of the drafting of sectional plans, is not a physical thing. It is an imaginary vertical or horizontal line that represents the “mid-points” that are half-way between the outside surfaces and the inside surface of a wall, floor or ceiling, with one half of that wall, for example, on either side of the median line. In terms of section 5 of the Sectional Titles Act (“the ST Act”) where a door or window is set into an exterior section wall, the median line goes through the center of that door or window. The effect of this provision is that windows and doors (including garage doors) in the exterior walls of sections are always partially part of the section (the inner 50%) and partially part of the common property (the outer 50%). The intent of this provision is to make the owner and the body corporate share maintenance and repair costs equally.
In terms of section 3(1)(l) of the Sectional Titles Schemes Management Act (“the STSM Act”), the body corporate must maintain all the common property, which includes the exterior part of any wall, door or window that forms a boundary between a section and common property. In terms of section 13(1)(c) of the STSM Act, the owner must repair and maintain the interior part of any wall, door or window that forms a boundary between a section and common property. Therefore, the expenses (which could include maintenance, repair and replacement costs) in regard to any window or door (including garage doors) in an exterior section wall should be split equally between the owner and body corporate.
If the windows cannot handle the level of wind-driven rain due to its age and design and are beyond effective repair, and the only permanent solution will be a replacement, then the replacement of the windows could either fall within maintenance or be an improvement depending on the circumstances. If, for example, the wooden window frames are replaced with aluminium ones, then the replacement will be useful and necessary.
The process set out prescribed management rule (“PMR”) 29(2) must be followed to authorise the replacement of the windows. Should the trustees wish to effect reasonably necessary improvements to the common property, they must give written notice to all owners. The notice must indicate the intention to proceed with the improvement after a stated date not less than thirty days from the date of posting and provide details of the proposed improvements. The details must include:

• The costs of the proposed improvements.
• How they are to be financed, including details of any special contributions or loans by the body corporate that will be required for this purpose.
• The estimated effect on levies and the need, desirability and effect of the improvements.

On receipt of notice from the trustees, any owner may request that the trustees convene a special general meeting to deliberate upon the proposals. At this meeting, the owners may, by special resolution, approve the trustees’ proposal with or without amendments. If any owner does request a special general meeting, the trustees may not proceed with their proposals until the meeting has been held. They are bound by the terms of any special resolution taken at that meeting. If they think owners may want to meet to discuss the issues, the trustees can save time by convening the special general meeting at the same time they give owners notice. If a meeting is called and no special resolution is taken approving the proposed improvements, The trustees may not proceed with the proposed improvements. If no owner requests a meeting within the notice period, the trustees are authorised to proceed with the improvements.
The body corporate can fund the project by:

• Using reserve funds.
• Raising a special levy if it is necessary that this is done before the next annual general meeting (“the AGM”).
• The body corporate can include the expense in the next budget presented for approval at the AGM.

The cost of repair or replacement of the windows or doors (including garage doors) in the exterior section wall that forms a boundary between the sections and common property should then be split equally between the owner and body corporate.
If you require assistance with drafting the required documentation to authorise the replacement of windows then please contact us at consulting@paddocks.co.za or call 0216863950.

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Article reference: Paddocks Press: Volume 13, Issue 5.
Dr Carryn Melissa Durham is one of the most highly qualified Sectional Title Attorneys in the country (BA, LLB, LLM and LLD), Carryn forms part of the Paddocks Private Consulting Division.