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.