My thoughts on rules in bodies corporate

23 July 2021 | Shirley Baillie

Now more than ever people challenge, ignore, disrespect, and laugh-off laws and it seems that many get away with this behaviour. But this, simply should not be allowed in community living. For the benefit of all, the scheme executives are empowered and mandated to enforce rules, but they need to ensure that they are reasonable, updated to allow for changing circumstances, registered and applied fairly to all. Our home needs to be a safe haven, with neighbourliness but without nosiness.

People still buy and rent in sectional title, thinking it will be the same as living in a freehold home. The estate agents should be making them aware of the conduct rules, but many do not. If any questions or doubts do arise, they are brushed aside, with “we will sort it out later”, either by a sales-driven agent, or an emotionally-charged potential owner or tenant. Later is too late! Changing rules is a long process and might not always go in your favour.

This often results in a lot of unhappiness; blame is apportioned to everyone including the estate agent or unreasonable trustees: and owners/tenants play the victim card - “how can they do this to ME?”

It all comes down to buyers not applying the clause in law known as Caveat Emptor (“Let the buyer beware”). This is not just about possible defects, and voetstoots clauses. It is about doing your due diligence before signing anything. This would include getting the latest registered conduct rules which would have been stamped by the Deeds Office, if lodged prior to 7 October 2016. Since then, conduct rules need to have been approved by Community Schemes Ombud Service (“the CSOS”) who will issue a certificate in terms of Section (10)(5)(c) iro the Sectional Titles Schemes Management Act 8 of 2011 (“the STSMA”).

These are a few samples of true situations which often occur because people have not read the conduct rules before purchasing or renting in sectional title:

“I saw other dogs in the complex, so I thought that dogs were allowed. Now I am told new dogs are NOT allowed. What must I do with my 14-year-old dog?”

 “I did not know that I could not change the second garage (which I do not need) into a TV room so that my teenagers can have their own space. Now the neighbours are complaining all the time. It is my garage after all.”

“Why can’t I install solar heating, on my roof, to save electricity. It is my roof.”

“A new tenant was stopped from moving into her new residence by the guard at the gate when the removal van arrived at 9pm. The conduct rules say no moving in after 6.00pm. (This type of rule may not be Constitutional, but who is up to arguing at 9pm at night? Who can I sue for the costs I incurred?”.

It is worth considering placing a disclaimer sign at the entrance to a Body Corporate to first time visitors:

“To maintain the smooth running of the body corporate and maximize peace and harmony, familiarity and compliance with the conduct rules is not only necessary, but a legality with consequences when breeched.

All owners, occupants, visitors, and workers on site are subject to the conduct rules of this body corporate. Copies available from the management office.”

Since 7 October 2016, when there were major changes to sectional title legislation, conduct rules must be voted in by a special resolution (75% of the correct quorum is needed to vote in favour of the rules). This means that all the owners have a voice in approving them, or not approving them. Rules prior  the STSMA, which have not been replaced, remain enforceable if they are not contrary to the Constitution, or the Directive brought out in May 2021 by CSOS.

In everyday life, one sets boundaries with the hope that it will teach people how to treat you and so one feels uncomfortable. This should happen in bodies corporate too. If the scheme executives regularly, without fear or favour, enforce the conduct rules as is required by them in terms of the STSMA, using the prescribed methods which should be set out in the body corporate conduct rules, then the message is strong as to what will and will not be tolerated. It is a matter of the correct discipline and procedure.

Some facts that you should know:

• If your body corporate has not updated your conduct rules in terms of the STSMA, it is essential to do this. So much has changed. Visit the CSOS website for more information.

• When considering reviewing your conduct rules, it is more effective to go directly to a professional in community schemes, as few people have the knowledge to re-construct them correctly and CSOS is undertaking quality control to ensure that the rules are acceptable and comply with the STSMA, CSOS practice directive, Constitution. This avoids micro-managing, or “personal agenda” rules.

• When you are submitting your rules for change, submit your current conduct rules, suggestions of what you would like to see included, the body corporate plans, and let the professional come back to you with a draft. The trustees and professional should then benefit from a consultation to finalise them.

• It should be noted that until a  correct fining  process is included in your conduct rules, fines may not be issued. Tenants are the responsibility of landlords as owners.

• A correctly formulated set of conduct rules, and consistent application by the trustees will go a long way to a better run body corporate which will make for general harmony and pleasant living. This is well summed up in the following:

“The spirit of Ubuntu is essentially to be humane and ensure that human dignity is always at the core of your actions, thoughts, and deeds when interacting with others. Having Ubuntu is showing care and concern for your neighbour. It‘s lending a helping hand and displaying an understanding of the dignity with which human beings ought to be treated – for the simple reason that they are human.”

Should you wish to review and/or amend your schemes conduct rules, contact us on info@tvdmconsultants.com or 061 536 3138.

About the Author: Shirley Baillie of S Baillie and Associates and Publisher of Keyword Access to the Sectional Title Legislation and sectional title trainer is all about bringing practical solutions and knowledge to those living in, or working with, sectional title.