Common Law vs CSOS Remedies: Addressing Damage Caused by Neighbours in Community Schemes
The key differences between Common Law remedies and those available under CSOS Act
By Prof. Graham Paddock
In the context of South African property law, damage caused by a neighbour’s actions or negligence can give rise to a variety of legal remedies. The choice of remedy depends on whether the dispute arises in a common law setting or within the framework of a community scheme, such as a sectional title development or homeowners’ association, where the resolution of administrative disputes is governed by the Community Schemes Ombud Service (CSOS) Act. This article will explore the key differences between common law remedies, such as claims for damages or interdicts, and the remedies available under the CSOS Act, focusing specifically on the ability to compel a respondent to carry out repairs and prevent further harm.
Common Law Remedies: Damages and Interdicts
At common law, when a property owner suffers damage due to a neighbour’s failure to maintain their property, the injured party may pursue a claim based on delict. The essential remedy here is a claim for damages, which compensates the injured party for the financial loss caused by the negligent or intentional act of the neighbour.
Theoretically, self-help and local authority nuisance abatement orders may be alternatives in exceptionally urgent circumstances, but these are extremely unusual. In practice, where ongoing or imminent harm is foreseen, the injured party can only seek an interdict. This can either be a prohibitory interdict, which stops the neighbour from continuing harmful conduct (e.g., preventing further water damage); or a mandatory interdict, which compels the neighbour to perform a specific act, such as repairing damage to their property to prevent further harm.
The requirements for obtaining an interdict are (a) a clear right— the applicant must have a right to be protected, e.g., the right to undisturbed enjoyment of their property, (b) harm— there must be actual damage or a reasonable apprehension of future harm, and (c) no adequate alternative remedy— damages alone must not be a sufficient remedy.
However, while courts may order a defaulting neighbour to repair their own property, they will not order them to physically enter the injured neighbour’s property to make repairs to the damaged parts of that property. Financial compensation is the primary remedy, and courts do not compel parties to perform specific acts on another’s property.
Remedies Under the CSOS Act
In contrast, the CSOS Act provides more flexible and specific remedies for disputes within community schemes. One of the key advantages of CSOS adjudication is the power to compel parties to undertake specific repairs or maintenance to areas outside of their own private areas, such as those of any injured neighbour. This is particularly relevant where damage to one section or common property is caused by the failure of a neighbouring unit owner to maintain their section.
Under Section 39(6)(b)(i) of the CSOS Act, an adjudicator can make an order requiring the relevant person “to carry out specified repairs or have specified repairs made” to private or common areas. This is a significant departure from common law. Section 54(2) of the Act further broadens this power, allowing an order to require a person to “act, or refrain from acting, in a specified way.”
In the case of FC Schumacher v Michael Bronn (CSOS 8183/KZN/23), the applicant, an owner in a sectional title scheme, suffered water damage due to the respondent’s failure to maintain his balcony and drainage. The CSOS adjudicator granted an order requiring the respondent to carry out specific repairs to both his balcony and the applicant’s damaged section, in line with the findings of a professional report (Detecta Leak CC). The orders included:
Applicant’s relief sought in terms of Sections 39(6)(b)(i) is granted. Respondent is ordered to conduct the necessary repairs to his balcony as well as to the bedroom wall and balcony ceiling of unit 31, as per the Detecta Leak Report dated 21 January 2021 – to the reasonable satisfaction of the trustees of Bay Ridge Body Corporate on/before 30 April 2024. A copy of this order to be distributed to the trustees of Bay Ridge and the new owner of unit 31 in terms of section 55(1) of the CSOS Act.
This type of order, made under Section 39(6)(b)(i), illustrates how CSOS adjudicators can compel specific remedial action, unlike the more limited remedies of the common law.
Key Differences Between Common Law and CSOS Remedies
- Scope of Orders: Under common law, damages remedies are primarily financial, focusing on compensation for harm already done, so a plaintiff must quantity and prove their damages and seek financial compensation, leaving them to carry out the repairs and take the risk of further interim damages, cost increases and overruns. In contrast, the CSOS Act explicitly empowers adjudicators to order respondents to carry out specific repairs at their cost and take action to prevent further harm.
- Preventive and Remedial Focus: While an interdict under common law can prevent future harm, it requires a higher threshold of urgency and necessity to be granted. In CSOS matters, the focus is often remedial, with adjudicators readily empowered to order maintenance or repairs to resolve ongoing issues, as seen in Schumacher v Bronn.
Conclusion
When faced with damage caused by a neighbour’s actions, negligence or breach of a statutory duty in a community scheme, the CSOS Act offers applicants a more practical approach to dealing with specific repair and maintenance issues.
The flexibility and specificity of CSOS orders make them an invaluable tool in the management and governance of community schemes.
Article reference: Paddocks Press: Volume 20, Issue 02
This article is published under the Creative Commons Attribution license.
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