By Greer Moore-Barnes

Greer Moore-BarnesAn old friend once said to me – “in a perfect world we wouldn’t need rules” – how right they were. Unfortunately, however, we don’t live in a “perfect world”.

To make the factors revolving around rules easy to understand and also easy to remember, I have listed these in point form, and where relevant have inserted references to the Sectional Titles Act 95 of 1986 and its Regulations.

  • In terms of S.35 of the Act, from the time it first comes into being (when any unit is transferred from the Developer to a third party), a Scheme must be controlled and managed in terms of its Rules.
  • In terms of S.36(4) the Rules must be enforced by the Body Corporate; which duty is carried out by the Trustees.
  • All Rules must be reasonable, and must apply equally to all the owners of units used for the same purpose [S.35(3)].
  • If there are substantial distinguishing features in usage of units there might be differing Rules applicable (made either by the Developer at the time of developing the scheme, or later by the Body Corporate following the necessary Resolution/s being obtained)
  • The Rules provide for the control, management, administration, use and enjoyment of the sections and the common property.


Rules can be divided into two distinct groups; Management and Conduct.

Management Rules:

  • The model Management Rules are contained in Annexure 8 of the Regulations to the Sectional Titles Act.
  • No Management Rule can be contrary to any provision of the Sectional Titles Act.
  • The Annexure 8 Rules are comprehensive and dictate operating procedures.
  • In Schemes developed under the 1971 Act, and where these Rules have been properly filed with the Deeds Registry office, the Management Rules might be contained in Schedule 1 Rules.
  • Any change to the Management Rules requires a Unanimous Resolution.


Conduct Rules:

  • The model Conduct Rules are contained in Annexure 9 of the Regulations to the Sectional Titles Act.
  • As the name implies, these Rules deal with the control of behavioural matters; that is issues of conduct.
  • No Conduct Rule can be contrary to the prescribed Management Rules or any provision of the Sectional Titles Act.
  • While the standard Annexure 9 rules are brief, they are also comprehensive if correctly applied; however Conduct Rules are often tailored to suit specific needs.
  • Any change to the Conduct Rules requires a Special Resolution.
  • When a Scheme first comes into existence, it usually has the prescribed Management and Conduct Rules.
  • The Developer may choose to amend these Rules, although the Regulations to the Act prescribe that certain rules may not be amended or discarded by the Developer; alternatively the Body Corporate may make alterations to the Rules at a later stage, using the relevant resolutions as noted above.
  • Once the required Resolution for any amendment is obtained, the amended Rules must be lodged (filed) with the Deeds Registries office. 
  • Only once this notification has been lodged does that change come into effect.
  • It must be remembered that Trustees may not change Rules – this power always rests with the Body Corporate and may only be attained by the required Body Corporate Resolution.

Enforcement of Rules:
  • The body corporate shall, subject to the provisions of the Act [S.36(4)], be responsible for the enforcement of the rules referred to in S.35.
  • This statutory duty of enforcement is carried out by the Trustees.
  • The Rules are applicable to all owners / occupiers and, in terms of PMR.69 the owner is responsible for ensuring compliance by anyone occupying their section, including employees, guests and any member of his family, his lessee or his occupant.
  • The Registrar of Deeds is in no way involved in the enforcement of the Rules, nor indeed in vetting Rules filed.
  • Conduct rules that generally cause the most grief are inevitably related to pets, parking and parties – “the 3 P’s”.


Reasonable interpretation:

  • The Trustees, in enforcing the Rules, must act reasonably at all times. Rules must apply equally to all owners / occupiers (and this includes Trustees) of units used for the same purpose.
  • Owners are extremely emotional about their pets, and very careful thought should be given in considering applications for pets. It is advisable to reduce all applications / approvals to writing and to include specific provisions to protect the Body Corporate.


Two important cases relative to pets are:

  • Regspersoon Panorama v B Nolan en Andere Case 97/6695 Unreported in the Witwatersrand high court.
  • Body Corporate of Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D) Case No 444/98 in Durban and Coast Local Division of the High Court.

Both make for interesting reading, and Trustees would be well advised to make themselves aware of the facts and findings in these cases.

When to use arbitration:

  • A dilemma often facing Trustees is what to do if owners / occupiers continue to breach the rules.
  • Where direct approach on a personal, informal basis has failed, a more formal approach is necessary.
  • It is important to keep a paper trail which might become vital if some form of legal action is the only option likely to resolve the dispute.
  • PMR.71 makes provision for disputes between the Body Corporate and an owner, or between owners, to be decided by arbitration. This is an effective method to consider where other efforts have failed. But before engaging in arbitration proceedings, it is important for the trustees to consider the potential costs involved.

Remember however that the ultimate rule must surely be “The Good Neighbour” rule – a simple and effective solution, and one which unfortunately is forgotten in the heat of the moment!

Greer Moore-Barnes is a Managing Member of The Bellbuoy Group.

 
Article reference: Volume 5, Issue 3, Page 2
 
This article is published under the Creative Commons Attribution license.