Dealing With Behavioural Disputes In Community Schemes
|A Critical Analysis Of Certain Aspects Of The Community Schemes Ombud Service Act, No 9 Of 2011
Month 3: March 2019
Dealing With Behavioural Disputes In Community Schemes
There are many different community schemes and arrangements in South Africa. For many years there was no regulatory body governing these schemes. The Community Schemes Ombud Service Act 9 of 2011 (“CSOSA”) came into operation in October 2016 and many of these schemes now qualify as community schemes under the CSOSA. Subsequently, the CSOSA established a regulatory body established by government 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. The term “community scheme” refers to a wide range of shared land use arrangements, including sectional title, share block and retirement schemes, home owners’ associations and housing co-operatives.
The CSOSA defines a “dispute” as:
“a dispute in regard to the administration of a community scheme between persons who have a material interest in that scheme, of which one of the parties is the association, occupier or owner, acting individually or jointly”.
This means 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.
Section 39 of the CSOSA provides for a list of seven types of orders that a CSOS adjudicator can give in terms of a dispute application. Each month, I will consider one of these seven categories of types of orders from a practical point of view to determine which kind of community scheme disputes can be taken to the CSOS for resolution and how an adjudicator can deal with such disputes. It is important to note that the list of orders provided for in the CSOSA is not exhaustive as the chief ombud is entitled to propose any other order.
The past two months I considered the disputes relating to financial issues in community schemes. This month I will look at behavioural issues which can arise in community schemes and how to deal with them.
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. The various orders relating to behavioural issues are summarised below.
An order confirming or dealing with nuisance
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.
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.
An order addressing animal problems
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, 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.
In terms of section 39(2)(c) of the CSOSA, an application may 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.
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. 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. 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.
Keep an eye out for next month’s newsletter as I will be looking at scheme governance issues related to community schemes.
|DANIËL VAN ZYL
ATTORNEY & CONVEYANCER
VAN ZYL KRUGER INC