A costly, time-consuming dispute over a security gate between a homeowner and the body corporate of his Cape Town complex highlights the importance of clear rules and compromise for harmonious community living.
This is according to specialist sectional title attorney Marina Constas, a director of BBM Law, who says that some people love rules and others abhor them. “The very word itself smacks of discipline, rigidity, parameters and limitations. On the other hand, rules can be positive. They ensure order and certainty and tell people what to expect and what is expected of them”.
READ: What to do when you don't have support from your ST trustees
Constas explains how a Cape Town homeowner and the complex trustees wasted time, energy and a huge amount of money fighting each other for nine years about a security gate that did not comply with the rules.
She says it could all have been avoided if the owner had a clear understanding of all the rules before installing the gate and when the disagreement started. There had been an effort to resolve it amicably through an internal dispute resolution process in the complex, rather than in court.
She outlines the case: “The body corporate imposed a monthly fine for the gate and the owner then decided to stop paying his levies. Over the years, the parties have been to court several times. The owner owed R155 000 in arrear levies in the end and the body corporate was granted an application to attach his unit. However, they decided not to do so and instead applied for a sequestration order which was granted and then overturned because there was no evidence that the owner was bankrupt. The outcome was that the body corporate was slapped with a costs order because they should never have gone the sequestration route and a judge found that it was an abuse of court process. Having to pay legal fees ultimately impacts all owners in that complex.”
To avoid a situation like this, Constas urges all sectional title owners to go to their annual general meetings and ensure that restrictions and directions are on the agenda. “Under this agenda item, owners can restrict the trustees from going to court for more than a specified amount of money. The expense of a nine-year court wrangle with an owner over a security gate could have been avoided in this way.”
She also stresses that trustees should not be dragging owners into litigation when a dispute could be solved if people were more conciliatory and willing to compromise.
READ: Dealing with outdated conduct rules? Here's how to create ST rules that really work
If internal dispute resolution measures fail, the next step should be the Community Schemes Ombud Service (CSOS), Constas says. “Our courts are increasingly demanding that sectional title and community schemes disputes go to CSOS first. Recent cases in which owners have approached the High Court before approaching CSOS have been dismissed with costs because the judges contended that CSOS was established for this purpose.”
Constas says that she does not fully agree with this due to concurrent jurisdiction, and the fact that people should be able to approach the High Court if they can afford to and the case’s value is sufficient. However, she stresses that going straight to litigation is not usually ideal in a community living dispute.
“There are more amicable and reasonable means to resolve a dispute. The main thing is that there must be an internal dispute resolution process within the complex. Everyone should be able to air their views – not just the trustees, but all members of the body corporate.
“While CSOS has faced some criticism, including reports that they are slow, it is certainly worth approaching the Ombud, especially to mediate a matter. CSOS has successfully mediated thousands of cases,” she says.
“The golden rule in any complex in terms of the Sectional Titles Schemes Management Act is that all rules must be reasonable and applied consistently for all owners. The body corporate cannot make an exception for one owner.”
Constas says complexes may want to review their rules, to ensure that they are fair and reasonable, and explains that this is one of the services offered by BBM Law’s specialist community schemes team.
“In my experience, many rules are actually illegal, unenforceable, unconstitutional and ill-considered. Unreasonable rules must be dealt with by owners because disputes that end up in court will mean that everyone must cough up for legal fees,” she says.
Andrew Schaefer, MD of leading property management company Trafalgar, recently shared 4 key responsibilities of a body corporate, which are shared by every owner.
Schaefer, says the trustees are in fact only acting on behalf of the body corporate, which is a legal entity made up of all the owners in the scheme, and has the fundamental responsibility for ensuring a well-run and financially secure property.
The key responsibilities of the body corporate, which are shared by every owner, are:
*Administration and good governance: “The body corporate is responsible for establishing and enforcing the rules and regulations of the scheme. It must also hold at least one general meeting a year where decisions regarding the budget, finances and management of the complex are made. The trustees who will execute these decisions are usually elected at this meeting.”
*Maintenance and repairs: Ensuring the upkeep and maintenance of common areas like gardens and walkways and shared amenities such as swimming pools, laundries or gyms is a primary responsibility of the body corporate, even if it is usually delegated to the trustees and managing agent, he says. This includes routine maintenance and necessary repairs, as well as a long-term planning for the maintenance and replacement of major items such as lifts.
*Financial management: “The body corporate, guided by the trustees and managing agent, must manage the finances of the Sectional Title scheme. This task includes collecting levies from individual owners to cover common expenses and paying any amounts owing to the municipality and other creditors for services provided to the common property. It must create and pass an annual budget, keep financial records, arrange an annual audit and ensure that the complex is adequately insured at all times.”
*Dispute resolution: The body corporate is also responsible for resolving any disagreements between owners with regard to issues such as noise, pets, parking, drying washing on balconies, property alterations, or compliance with rules, Schaefer notes. “There are also specific procedures to follow when an owner or group of owners is in dispute with the body corporate itself. If these cannot be resolved internally, they must be referred to the Community Housing Schemes Ombud for mediation or adjudication.”
He also says that once individual owners understand that they are actually a part of the body corporate and not separate from it, it is usually easier for them to accept that each of them, and not just the trustees, has a role to play in keep the complex solvent and in good repair.
“While the trustees and managing agent may handle the budgeting, levy collection, debt collection of arrear levies, payment and regular maintenance tasks, they cannot plan or do any of this work effectively without the collective support of the owners in the body corporate.”
Schaefer says this support can take many forms, but at the very least should include the prompt payment of any levies due. “If the body corporate is the backbone of the Sectional Title scheme, levies are its lifeblood, essential for financial stability, the maintenance of common areas, municipal services continuity and the protection of value.
“In addition, owners should make every effort to attend body corporate meetings and participate in the discussions about and votes on budgets, levies, reserve funds, changes to conduct rules and other issues. In this way they can help shape the decisions and policies that are going to affect them anyway. Interested owners should seriously also consider serving as trustees to play a direct role in decision making on behalf of the body corporate.”
And on this point, he says, all owners need to adhere to the body corporate rules and regulations, and ensure that their tenants do, too. “Being a considerate neighbour is also one of the best ways to create a harmonious and peaceful life in a Sectional Title community and a successful scheme.”
*Article updated 11 October 2023
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