There is something about living in close proximity to one’s neighbours that can lead to disharmony which, if not nipped in the bud, can wreak havoc in a sectional title complex.
For this reason, it is of the utmost importance that trustees ensure that rules are complied with and enforced.
With this in mind, legislators have introduced a new conduct rule in the Sectional Title Schemes Management Act. This Conduct Rule 7 – Behaviour of occupiers and visitors in sections and on common property sets out the expected behaviour for occupants and visitors.
This rule shortly requires that an owner or occupier of a section:
- must not create noise likely to interfere with the peaceful enjoyment of another person’s section or common property
- must not obstruct the lawful use of common property by any other person
- must take reasonable steps to ensure that their visitors don’t behave in a way likely to interfere with the peaceful enjoyment of a section or common property
and lastly, but most importantly
- is obliged to comply with these conduct rules, despite any provision to the contrary contained in any lease or any other grant of rights of occupancy.
Maintenance and repairs
There are rules, not behavioural in nature, which can also be enforced by trustees taking action. One such rule relates to the upkeep of a unit.
The Sectional Title Schemes Management Act places an obligation on the unit owner to repair and maintain their section and to keep their exclusive use area in a neat and clean condition.
This, for example, could be the case where a shower floor is leaking and causing a brown stain on the ceiling of the unit below, or where rats have begun nesting in a pile of building materials that a tenant is storing alongside a unit.
Management rule 31(2), allows trustees, after sending a written demand, to proceed with repairs or maintenance of a section if the owner’s failure to do so “materially prejudices” the interests of the body corporate, or “threatens the stability of the common property or the safety of the building”. The cost thereof will be for the owner’s account.
NB: The trustees can act straight after the written demand. There is no longer a 30-day waiting period. Furthermore, no written demand is needed in an emergency situation.
The bottom line: If you don’t repair or maintain your section, the trustees can and will do it, and charge you accordingly.
Ensuring harmony among the residents of a scheme can be a tough job and having an effective dispute resolution mechanism is critical to ensure the good management and long-term wellbeing of the scheme, not to mention the sanity of the trustees!
Here are some of the options available for dispute resolution:
- Internal mediation: Here trustees utilise their discretion in attempting to resolve a problem. This could be by way of telephone calls to the warring parties, by arranging a friendly round table meeting, or a one-on-one get together to thrash out the problem and come to an agreement which everyone can live with.
- Court: The court route may be suitable for matters involving high values or complication issues although many judges do not wish to become embroiled in domestic disputes and send the parties back to settle in any event.
- Private arbitration: Parties must agree to go to private arbitration for this route to be followed. If parties cannot agree on an arbitrator, an organisation such as the Association of Arbitrators can appoint an arbitrator. Parties must agree upfront on the rules to apply to the arbitration and whether or not the award could be made by a court order.
The Community Schemes Ombud Service
If internal mediation hasn’t worked or the parties wish to avoid court or private arbitration, the body corporate or owners can approach the Ombud Service.
Types of disputes that go to the Ombud Service:
- Financial e.g. an order requiring the scheme to take out insurance or increase the amount of insurance
- Behavioural e.g. an order that particular behaviour constitutes a nuisance requiring the person to refrain from acting in a specific way
- Scheme governance issues e.g. an order to remove an unreasonable provision
- General meetings e.g. an order to call a general meeting
- Management services e.g. an order to appoint or terminate a managing agent’s contract
- Works pertaining to private and common areas e.g. an order requiring the scheme to have repairs and maintenance carried out
The Ombud will, when receiving a dispute, determine whether internal dispute resolution processes have been conducted and may refer the matter to mediation/conciliation.
If there is no prospect of successful conciliation, the Ombud will refer the matter to adjudication.
The adjudicator must:
- grant or reject relief sought
- apportion liability of costs
- include a statement setting out the reasons for the order
- emphasise the right to appeal
A body corporate or owners can appeal the order in the High Court, but only on a question of law.