APEX Property Group Pty Ltd

16/08/2022

The Community Scheme Ombud Services published three (3) Practice Directives for comments and inputs (must be submitted to the CSOS no later than Friday, 19th August 2022). These Practice Directives are:
1) Practice Directive on Protection of Personal Information and Access to Information in a Community Scheme
2) Practice Directive on the Approval of Special and Unanimous Resolutions Process in terms of the Sectional Titles Schemes Management Act 2011
3) Amendment of the Price Directive on payment of levies and fees.

You can send an email to [email protected], should you wish to receive a copy of any of the above directives.

11/08/2022

HET U SKEMA ‘N OPENBARE AMPTENAAR AANGESTEL?

Dit is belangrik om te weet dat ‘n gemeenskapskema verantwoordelik is om te registreer as ‘n belastingpligtige soddra die skema wetlik opgerig is. In terme van Artikel 101 van die Inkomstebelastingwet no 58 van 1962 (soos gewysig), is die bestuur van ‘n entitieit verplig om ‘n Openbare Amptenaar aan te stel wie verantwoordelik sal vir die belasting aangeleenthede van die skema. Die pligte en verantwoordelikhede van die Openbare Amptenaar sluit die volgende in:
• Registreer die skema as belastingpligtige, en indien nodig, as Werknemer;
• Indiening van belastingopgawes in die voorgeskrewe vorm;
• Ontvang van belastingdokumente namens die skema;
• Stel SAID in kennis van enige veranderinge hetsy die adres van die skema of die Openbare Amptenaar.
As u skema ‘n boekhouer of een van die trustees gebruik om die skema se finansiële administrasie te behartig, is dit net logies dat daardie persoon aangestel word om te dien as die skema se Openbare Amptenaar. ‘n Skema kan natuurlik ook ‘n persoon werksaam by die agentskap wie die skema bestuur, aanstel.
Sou die aanstelling van ‘n Openbare Amptenaar nie binne een maand vanaf die voorgeskrewe tydperk gebeur nie, mag die SAID een van die trustees, direkteure (HEV sonder winsoogmerk) of lid van die skema aanstel in die posisie, sonder om enige verdere korrespondensie te voer.
Skemas moet registrasievorm IT77c voltooi om te registreer vir inkomstebelasting en indien by die plaaslike SAID tak. Die Publieke Amptenaar moet ‘n afskrif van haar/sy ID dokument sowel as bewys van adres (nie ouer as 3 maande) saam met die vorm inhandig.

Sou u belangstel in die SAID Rigyne, stuur asseblief vir ons ‘n epos ([email protected]) en sal u met graagte voorsien van ‘n afskrif.

11/08/2022

09/08/2022

Wishing you a happy Women's Day.

14/07/2022

Interesting question!

By now we have become familiar with Prescribed Management Rule (“PMR”) 23.(2)(b) of Annexure 1 of the Regulations to the Sectional Titles Schemes Management Act 8 of 2011 (“the STSMA”) which deals with who should pay the excess following an insurance claim. It reads as follows: “A member i...

12/07/2022

KNOW THE RULES AND RESTRICT LITIGIOUS TRUSTEES - Article by Marina Constas

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.

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. Rules are essential in a sectional title complex.

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. 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 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, all sectional title owners should 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.

Trustees should not be dragging owners into litigation when a dispute could be solved if people were more conciliatory and willing to compromise.

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

I do 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, 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.

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.

Complexes may want to review their rules, to ensure that they are fair and reasonable. 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.

03/07/2022

Property Practitioners are urged to encourage their auditors, accountants and independent reviewers to attend this seminar and live webcast. The seminar is complimentary to SAICA members. Please book here https://www.saica.co.za/brochures/?BrochureId=3055

29/06/2022

WHAT IS AN OWNER'S RIGHT WHEN HE WANTS TO CONTACT OTHER OWNERS IN A COMMUNITY SCHEME?

We are aware that many professionals in the industry believe that due to the application of the POPIA, personal information may not be circulated to others within the scheme, however, this is not a view held by our offices.

Please read below article by Auren Freitas dos Santos.

By Auren Freitas dos Santos By now it is understood by most stakeholders in the community schemes industry that the Protection of Personal Information Act (more commonly known as the “POPI Act”) ca…

28/06/2022

Join CSOS as per below link.

Please join us for a training and info session on building plans and compliance in complexes.

Our guest speaker is Abri Snyman, an expert on the subject.

Date: 8 July 2022
Time: 9 to 10 am

Topics of Discussion:

• What is building compliance and why is it important?
• Information required to determine building compliance
• Establishing compliance in a complex

The session will be hosted virtually via MS Teams.

Meeting link: meeting_ODJjZWRlZDAtN2FkMy00YzdjLTk2M2YtOTliMGMzZmFjMTcz@thread.v2/0?context=%7B%22Tid%22:%226b6557b3-4111-4623-9cca-6281a5a00539%22,%22Oid%22:%22a5ea2ca1-706c-4b67-b1ae-dd554d27a230%22%7D" rel="ugc" target="_blank">https://teams.microsoft.com/l/meetup-join/19:meeting_ODJjZWRlZDAtN2FkMy00YzdjLTk2M2YtOTliMGMzZmFjMTcz@thread.v2/0?context=%7B%22Tid%22:%226b6557b3-4111-4623-9cca-6281a5a00539%22,%22Oid%22:%22a5ea2ca1-706c-4b67-b1ae-dd554d27a230%22%7D

27/06/2022

WHAT IS A GUIDE, HEARING OR ASSISTANCE DOG? Interesting article by Nicole Nel from TVDM Consultants.

Upon coming into force in 2016, the Sectional Titles Schemes Management Act 8 of 2011 (“the Act”) had not only repealed several provisions of its predecessor, the Sectional Titles Act 95 of 1986 (“the STA”), but also introduced many new and exciting concepts into the world of sectional title in South Africa. One of these new concepts is that of a guide, hearing or assistance dog.

These types of dogs are specifically mentioned in the Prescribed Conduct Rule (“PCR”) 1(2) of the Regulations to the Act. This is with reference to the keeping of animals, reptiles and birds rule within a sectional title scheme.

PCR 1(2) provides that any owner or occupier who is suffering from a disability and who reasonably requires a guide, hearing or assistance dog must be considered to automatically have the trustees’ consent to keep that animal in a section and to accompany it on the common property.

Therefore, according to the Act, this PCR makes a guide, hearing or assistance dog the ultimate and only exception to a “no pets” rule within a sectional title scheme.

However, the Act definitely falls short in terms of providing us with a definition for such dogs. Further, it fails to provide us with the exact circumstances under which such an animal may be used, as “An owner or occupier suffering from a disability and who reasonably requires a guide, hearing or assistance dog”, is too broad of a scope, and it is difficult to define exactly what might be a disability and what might not be. A further issue would be this concept of reasonableness, as what is reasonable for one person is not necessarily reasonable for the next person.

Since the Act draws inspiration from several Australian territories, namely New South Wales, Victoria and Queensland, there are many similarities between South African and Australian sectional title legislation. It is thus from our Australian counterparts that we adopted this concept, and it is in through the interpretation of their legislation that we can find more clarity on the definition and the circumstances surrounding the use of such an animal.

According to the Queensland Guide, Hearing and Assistance Dogs Act of 2009, a guide dog, hearing dog or assistance dog is one that is specifically trained to perform certain physical tasks and behaviours to assist someone with a disability and to reduce that person’s need for support, and to promote independence for that person to participate in the community. According to the act, these dogs aid individuals suffering from any physical disabilities, disabling illnesses like multiple sclerosis, autism, post-traumatic stress disorder, mental illness, and dementia.

This act further stipulates that these dogs must be certified, by completing a series of intensive training courses, and be able to pass a “Public Access Test” to ensure they are safe and effective in a public place, public passenger vehicle, or place of accommodation, and are able to be controlled by their handler/s in all situations.

Unfortunately, South Africa does not have any legislation defining or regulating the training or certification of guide, hearing and assistance dogs. It is therefore becoming increasingly difficult for trustees in sectional title schemes across South Africa to ascertain whether a member genuinely requires the use of this kind of animal, or whether they are trying to take advantage of this exception to the “no pets” rule, and pass a companion dog off as a guide, hearing or assistance dog.

To muddy the waters, despite the Act expressly mentioning a guide, hearing or assistance dog, the Community Schemes Ombud Service (“CSOS”) have recently handed down adjudication orders allowing for members to keep cats as emotional support animals.

This complicates things further by two-fold. Firstly, the CSOS granting permission for emotional support cats to be kept when the Act clearly stipulates dogs. Secondly, due to the fact that, according to Australian legislation on this subject, an emotional support animal and a guide, hearing and assistance dog are not the same thing.

It’s thus clear to see that the path of guide, hearing and assistance dogs is not an easy one to take in a South African context. There is still much uncertainty surrounding this topic that may only be cleared up once the appropriate Guide, Hearing and Assistance Dog legislation is implemented in South Africa. Until such time, these situations within a sectional title scheme will have to be dealt with on a case-by-case basis.

23/06/2022

On our way to the CSOS Training & Information Session in the South Cape. Hope to see all our client there!