A warning for South Africans living in complexes and estates – and the rules you should know

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, says specialist sectional title attorney Marina Constas.

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, said Constas, who is a director of BBM Law.

Constas contends that it could all have been avoided if the owner had a clear understanding of all the rules before installing the gate and if, 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.

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 said that trustees should not be dragging owners into litigation when a dispute can be solved if people are more conciliatory and willing to compromise.

“If internal dispute resolution measures fail, the next step should be the Community Schemes Ombud Service, Constas said. “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.”

Going to court is not always the answer 

Constas said 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 said 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 said.

“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 said that complexes may want to review their rules, to ensure that they are fair and reasonable.

“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.”

Read: 10 things you can do to your home that will actually lower its value

Source link

Leave a Reply

Your email address will not be published.