The Sectional Titles Act prescribes that a scheme shall be controlled and managed by means of rules.
Generally speaking, the purpose of these rules is to ensure that owners and occupiers do not use their sections or the common property in such a way that it infringes on the other owners and occupiers’ rights.
I’m often asked by trustees of sectional title schemes how to deal with owners or occupiers who breach the body corporate rules and whether a court is entitled to issue out an ejectment order against persons who continually contravene them.
Although one might assume that a body corporate could always impose fines to keep owners or occupiers in check, neither the Sectional Titles Act nor the prescribed rules provide for the imposition of fines or penalties on apparent rule transgressors.
This does not mean fines are not possible.
Legally enforceable fines may indeed be imposed if the body corporate has adopted a carefully drafted rule which provides for a procedure to be followed for fining owners and residents.
However, much like traffic fines, the imposition of a monetary penalty often does little to prevent repeat violations.
More often than not a delinquent party will merely pay the fine and continue whatever activity the penalty sought to prevent in the first place. So, where to next?
In The Body Corporate of the Shaftesbury Sectional Title Scheme v The Estate of the Late Wilhelm Rippert and Others, the High Court pointed out the pressing social need in South Africa to enable sectional title owners and their controlling bodies to enforce compliance with their conduct rules and in so doing, if necessary, deprive the owner of the right to reside in or use the unit in circumstances where there are constant and deliberate contraventions.
Despite the court’s assertion having ongoing relevance, at present there is still no authority for courts to grant such ejectment orders, unlike in Spain where the Horizontal Property Act provides for a mechanism whereby a court may issue out a decree depriving the owner or occupier of the right to reside in or use the flat for up to three years in instances where there has been a regular contravention of the community owners’ rules.
In South Africa, the Sectional Titles Act grants body corporates the power to do all things reasonably necessary for the enforcement of the rules.
The prescribed management rules also oblige an owner not use his section in such a manner as shall be injurious to the reputation of the building.
The interrelated obligations of body corporate and owner are therefore central to this analysis. Ultimately, however, the necessity to enforce rules by way of litigation should always be carefully considered because of the possible negative impact such a measure may have on the social cohesion in a scheme.
Let us consider, as a practical example, a sectional title scheme which has a rule that no owner of a section shall, without the prior written consent of the trustees, structurally alter any portion of their section.
Should an owner ignore this rule and commence a building project without following the prescribed procedure and, further, refuse to comply despite written demand, the body corporate may then seek interdictory relief.
Such relief, in general, either takes the form of a prohibitory interdict (that is, an order preventing someone from doing something) or a mandatory interdict (an order compelling someone to do something), the former being appropriate in this instance.
However small, the deliberate breach of a conduct rule has the undeniably serious (although somewhat veiled) effect of compromising the standard of management of the scheme, which, if not addressed, will inevitably have a negative impact on the market value of the units.
The situation could easily gain momentum and develop into a spiral of decline which, beyond a certain point, may become unstoppable.
A conceivable end-result would be a significant net loss of owners’ investments in their property, which should clearly be avoided at all costs.
It is therefore imperative that trustees, in accordance with their statutory and contractual responsibility as representatives of a body corporate, take swift and effective action to prevent injury to the reputation of the building.
Since fines often do little to ensure compliance (the deeper an owner’s pockets, the less likely a breach will be prevented) there is no other satisfactory remedy available to body corporates to prevent owners acting detrimentally to the scheme-at-large.
This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Errors and omission excepted. (E&OE)