South African has many different community schemes and arrangements – often with conflicting rules and responsibilities.
However, the introduction of the Community Schemes Ombud Service Act (CSOSA) in October 2016 means that many of these schemes now qualify as ‘community schemes’.
According to Daniël van Zyl, the CSOSA also established a regulatory body to deal with complaints and disputes in community schemes and to oversee compliance and corporate governance in such schemes.
“The CSOS is designed to provide an alternative, impartial, cost-effective and transparent service for the resolution of administrative disputes in community schemes,” he said.
“The term ‘community scheme’ refers to a wide range of shared land use arrangements, including sectional title, share block and retirement schemes, homeowners’ associations and housing co-operatives.”
Van Zyl said that the CSOS can deal with disputes regarding the administration of a community scheme if the dispute is between persons who each have a material interest in the scheme, such as executive committee members, owners, occupiers, managing agents and bondholders, and one of the parties to the dispute should either be the association or an owner or occupier.
“In an intensified and diverse community such as community schemes where members or occupiers are often very close to one another in their accommodation, their parking of vehicles and their other shared use of the common areas, there is plenty opportunity for disputes to arise.
“When one member or occupier behaves in such a way as to create a nuisance, brings unauthorised animals into the scheme, or make themselves guilty of some sort of misconduct, the persons being affected by their wrongful behaviour can approach the CSOS for relief,” he said.
Van Zyl outlined some of the most complaints and the applicable rules below.
A nuisance is any repeated action that materially interferes with another owner or occupier’s use and enjoyment of his or her private area or the common areas.
An obvious example would be excessive noise from parties held in a section.
“In terms of section 39(2)(a) of the CSOSA, an application may be made for an order that particular behaviour or default constitutes a nuisance and requiring the relevant person to act, or refrain from acting, in a specified way,” said Van Zyl.
He added that it might be difficult to determine what particular behaviour would constitute a nuisance in such a high-density environment such as a community scheme.
“When living in a community scheme some behaviour might just have to be tolerated and the extent to which the association must become involved to enforce the behaviour regulating provisions and the scheme’s governance documentation can also be questioned.”
Some community schemes have rules that ban the presence of pets, even attaching a ‘no pets’ sign against the exterior of the complex.
However, some community schemes allow pets, mostly small dogs, cats, reptiles and birds, should the owner obtain the necessary permission from the body corporate.
If an animal, reptile or bird repeatedly behaves in a manner that unduly interferes with someone else’s peaceful use and enjoyment of his or her property, this is likely to lead to a dispute.
“In terms of section 39(2)(b) of the CSOSA, if satisfied that an animal kept in a private area or on common areas is causing a nuisance or a hazard or is unduly interfering with someone else’s peaceful use and enjoyment of his or her private area or common area, an application may be made for an order requiring the owner or occupier in charge of the animal to take specified action to remedy the nuisance, hazard or interference or to remove the animal,” said Van Zyl.
“In terms of section 39(2)(c) of the CSOSA, an application may also be made for an order declaring that an animal is being kept in a community scheme contrary to the scheme governance documentation and requiring the owner or occupier in charge of the animal to remove it.
“Therefore, in community schemes where the governance documentation does not allow the keeping of a particular type of animal, the association or a person prejudiced by the presence of the animal can approach the CSOS for relief,” he said.
An order requiring removal of items illegally attached
The governance documentation of most community schemes will determine that an owner will have to obtain the consent of the association to attach anything to the exterior of the buildings in the scheme.
According to Van Zyl, it is not unusual for owners and occupiers to attach things such as DSTV satellite dishes or awnings to the exterior walls, sometimes even without obtaining the necessary permission.
“The association or an owner who is prejudiced by an illegal attachment can apply to the CSOS for an order that the attachment be removed,”he said
“In terms of section 39(2)(d) of the CSOSA, an application may be made for an order for the removal of all articles placed on or attached illegally to parts of a common area or a private area.”