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.
