Dr Carryn Melissa Durham

Overcrowding can be a major problem in sectional title schemes, and it could lead to management difficulties. It affects the investment, which may result in a reduction in the market value of units. In addition it could also affect the owner’s potential rental income. It could also affect the living conditions of all the owners and occupiers. The problems that arise as a consequence of overcrowding include the over-use of the common facilities such as parking. It could also increase nuisance to other owners and occupiers in the form of excessive noise from the sections and exclusive use areas.

It is not uncommon for the developer or the body corporate to add an overcrowding rule in the scheme’s conduct rules. Such a rule usually limits occupancy to a specific maximum number of persons per section, depending on the size and number of bedrooms in the section. For example, the rule could limit the number of occupants in a bachelor flat to two persons, and a two-bedroomed section to four persons.

Are overcrowding rules valid and enforceable?

Neither the Sectional Titles Act, 95 of 1986 (“the Act”) nor the prescribed management rules (“PMRs”) deal specifically with the issue of overcrowding, but the Act does set out requirements for the type of rules that the body corporate can make. Section 35(3) of the Act states that any conduct rule made by the body corporate must be reasonable, and must apply equally to all owners of sections put to substantially the same purpose. An overcrowding rule can therefore be made by special resolution, as long as the content of the rule is reasonable and a fair limitation of an owner’s use rights in the circumstances of that particular scheme.

While on the one hand limiting occupancy does not sound unreasonable for a relatively up-market scheme, it is clearly a restriction on the extent to which owners can use their units, and it also limits the potential rental return that owners can derive from their property. In practice different levels of occupancy in a section are appropriate for different types of schemes, depending on the particular location and circumstance of the scheme.

In terms of PMR 68(1)(ii) an owner must not contravene, or permit the contravention of, any law, by-law, ordinance, proclamation or statutory regulation, or the conditions of any licence, relating to or affecting the occupation of the building or the common property, or the carrying on of business in the building, or so contravene or permit the contravention of the conditions of title applicable to his section or any other section or to his exclusive use area or any other exclusive use area.

In this regard, the Rental Housing Act 50 of 1999 provides in section 2(2)(c) that the Government must promote higher residential densities in existing urban areas as weIl as in areas of new or consolidated urban growth.

On the other hand, the City of Cape Town Environmental Health by-law (30 June 2003) defines “overcrowding” to mean:

“(1) a residential occupancy in excess of 12 occupants per sanitary convenience and/or
(2) occupancy of habitable rooms (being all rooms in a dwelling excluding kitchens, bathrooms and sanitary conveniences) for sleeping purposes where such occupation exceeds 1 adult person per 4 m² and/or 1 child under 10 years of age per 2 m²”.

Occupancy and overcrowding have been dealt with in a different manner in the National Building Regulations (the “SABS Code 0400 of 1990”), which has included a table on “occupancy classification and designed occupation for buildings.” This table has been extracted and recreated by the Cape Town Environmental Health Section. The classification of “H3” relates to sectional title schemes, and is described as “Domestic residence: Occupancy consisting of two or more dwelling units on a single site.” The total population allowed for this type of occupancy is 2 persons per bedroom. Where these conditions, in the by-laws, are being breached, the municipal health inspector must be informed.

The National Building Regulation relates to design. In my view, it does not limit the number of persons in a bedroom to two, but ensures that a building is designed to accommodate two persons per bedroom so that the sanitary conveniences, parking, width of stairs, and size of waste disposal pipes, must be able to accommodate that number of people.

In my view, there are possible circumstances under which this occupancy standard could be contravened, but where such contravention would not be considered to be a reasonable restriction on the occupancy rate. For example, it would be unreasonable to expect a young couple who are expecting a child, and who are residing in a one-bedroomed unit, to sell their unit or move out because of the above-mentioned occupancy restriction.

The actual number of people, and the load on the infrastructure overall, will still be an important factor. The trustees should monitor the numbers of occupants in the scheme, but should allow owners and occupiers to have more persons reside in the sections if they are not regular offenders of the other conduct rules.

Against the background of the Rental Housing Act and the municipal by-laws I have quoted, an overly restrictive rule is very likely to be held unreasonable if tested in a court of law. Therefore, I suggest caution in trying to enforce an overly restrictive overcrowding rule, especially in urban areas. It is also important to note that the trustees cannot evict the tenants who occupy an overcrowded unit. The owner of the unit will have to follow the legal procedure for eviction of his or her tenant. In this regard, for the owner’s protection, I suggest that all lease agreements should include a clause that allows for cancellation of the lease in circumstances of overcrowding.

A final consideration is whether a fine could be imposed for contravention of the overcrowding rule. This can only be done if there is a valid penalty provision (or “fining rule”) contained in the scheme rules. The fine should only be imposed on the owner of the unit for contravention of the overcrowding rule where it is shown that the overcrowding offender is in unreasonable excess of the occupancy allowance; is also breaching other conduct rules; has been warned to cease with the rule infringements and persists despite being given the opportunity to remedy the situation.

Article reference: Paddocks Press: Volume 11, Issue 04, Page 02.

Dr Carryn Melissa Durham is one of the most highly qualified Sectional Title lawyers in the country (BA, LLB, LLM and LLD), Carryn forms part of the Paddocks Private Consulting Division.

This article is published under the Creative Commons Attribution license.

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