The Community Schemes Ombud Service has published a reasonable number of adjudicator orders, all of which are available at https://www.csos.org.za/csos_adjudication_orders/.
I have added to these various orders that have been sent to me and, excluding orders that are merely formal or record settlements, in total, I now have the text of 83 Gauteng orders, 83 Western Cape orders and 67 Kwazulu Natal orders—enough to start the process of analysing their content.
Below are brief analyses of the first five orders from the Western Cape.
1. ? PARTIES: KATHERINE ANNE STOFBERG v HUNTERS VALLEY EQUESTRIAN CENTRE AND RESIDENTIAL HOME OWNERS ASSOCIATION
? ADJUDICATOR: ADV GPC DE KOCK
Date of Order: 29 NOVEMBER 2017
? KEYWORDS:
Claim against developer; costs of water supply; recovery of electricity charges; recovery of riding levies
? COMMENTS:
The adjudicator inspected the property. He identified the issues as:
1. whether the developer should be held solely liable for a new water supply,
2. whether any money is due by the farm for electricity usage, and
3. whether any money needed to be repaid for past riding levies that were charged over the years for the upkeep of the riding trails on the farm
? FINDINGS:
1. No order against the developer.
2. No order for a refund of any of the past riding levies.
3. An order was made for payment of electricity usage charges.
4. No order for costs.
2. ? PARTIES: SUSAN HEESE V TRUSTEES OF THE RIVERSONG FARM BODY CORPORATE
? ADJUDICATOR: ADV GPC DE KOCK
Date of Order: 12 FEBRUARY 2018
? KEYWORDS:
Administration; executive managing agent; refund of legal fees; refund of contribution; costs of repairs to a swimming pool; exclusive use rights; short-term letting; amendment of the application after reference to adjudicator
? FINDINGS:
1. The body corporate was liable for the cost of repairs to the applicant’s pool because it was not subject to exclusive use rights.
2. Under section 45(1) of the CSOS Act an application cannot be amended after it has been referred to the adjudicator.
3. The extensions of sections were not an alienation of common property.
4. The extending owners had not been enriched, as they paid increased levies prior to registration.
5. There was no basis to disqualify the two owners from office as trustees.
6. The application was without substance.
7. The applicant had to pay the respondent’s costs of the conciliation and adjudication procedures
? COMMENTS & QUOTATIONS:
• The applicant wanted to have her pool, which was built on unregulated common property, included in her section.
• The adjudicator explained the brevity of the order on the basis that: “the current fee structure for adjudicators does not allow for a more detailed order.”
• The adjudicator canvassed the possibility that the pool should be made part of the applicant’s unit (section) and that it be made subject to exclusive use right in terms of the scheme rules, suggested that the body corporate grant the applicant registered exclusive use rights, saying: “In my view, this would be a much better option than to deal with it in terms of the management or conduct rules.”
• Because the applicant’s pool was found to be built on common property, but not subject to exclusive use rights, the adjudicator found that the body corporate was obliged to pay the costs of its repair. The issue of whether the applicant had obtained permission to build the pool was not canvassed, but if the pool was not authorised by body corporate resolution it appears inequitable that the body corporate, effectively all owners, were obliged pay for repairs to a pool when the applicant has exclusive, albeit unauthorised and unregulated, possession of it. The body corporate could have a delictual claim to recover the repair costs.
• On the issue of short-term letting and the number of persons that should be allowed to occupy a unit, the adjudicator suggested these should be placed before a meeting of the body corporate for proper discussion and decision. He said: “While I am of the view that short-term letting should be allowed with a maximum of eight (8) persons per unit, I do not think that I am in a position to make such a ruling at this stage.”
? REFERENCES TO LEGISLATION (OTHER THAN CSOS ACT):
STSMA – PMR 28 (1) – (4), Sections 3(1)(l), 5(1)(e), 10(7) and (8), 16(1)
3. ? PARTIES: LEWIS ERROL ALBERT CALLAGHAN v KELSTON BODY CORPORATE / T BENTLEY AND D WOOLEY
? ADJUDICATOR: ADV. DRIES DU TOIT
Date of Order: 29 NOVEMBER 2017
? KEYWORDS:
Appointment of an administrator; encroachment; alienation of common property; incorrectly calculated contributions; failure to collect levies; failure to enforce rules; disqualification of trustees
? FINDINGS:
1. The two sections were properly extended.
2. The extensions were not an alienation of common property.
3. The owners had not been enriched, as they paid increased levies prior to registration.
4. There was no basis to disqualify the two owners from office as trustees.
5. The application was without substance and was dismissed.
6. The applicant had to pay the respondent’s costs of the conciliation and adjudication procedures
? COMMENTS & QUOTES:
1. The applicant was one of three co-owners, the others are not cited.
2. The adjudicator allowed legal representation, the joinder of DE & AL Wooley and the addition of two claims to the issues.
3. The applicant failed to appear and give evidence at the hearing, so the respondent’s version of the facts was undisputed.
? REFERENCES TO MANAGEMENT LEGISLATION (OTHER THAN CSOS ACT):
• STSMA – sections 5(1)(h) and (f), 16
• STA – sections 1(3)(c), 17, 24 & 27(5)
• CONSTITUTION OF THE RSA – section 25(1)
4. ? PARTIES: PETER MCINULTY v THE LOTHIANS BODY CORPORATE
? ADJUDICATOR: ZAMA MATAYI
Date of Order: 12 SEPTEMBER 2017
? KEYWORDS:
Application for Postponement; Nuisance; Children; Duties of trustees
? FINDINGS:
1. The adjudicator refused to postpone the hearing due to the chairperson’s absence and allowed the managing agent to lead the respondent’s case.
2. The trustees had not taken any steps to investigate a nuisance complained of.
3. The adjudicator stated that the issue to be decided was not whether or not there had been a nuisance but whether or not the trustees failed to discharge their duty to enforce the conduct rules.
4. The adjudicator ordered the body corporate to apply and enforce its conduct rules and to investigate all complaints, whether registered by a single person or a number of people.
5. No order as to costs.
? COMMENTS:
In item 38 there is an incorrect reference to the deleted section 38 (j) of the Sectional Titles Act 95 of 1986. This should have been a reference to the replacement provision, section 4(i) of the Sectional Titles Schemes Management Act of 2011 which has similar, but not exactly the same wording as quoted.
? QUOTES:
On the issue of noise nuisance by children:
• “it is important for everyone to understand that children are children and should be understood as such”
• “playing forms an integral part of children’s growth and development. Therefore children should be allowed to play and be afforded an opportunity to enjoy their childhood. This process of growth and development while playing also involves instilling good values, discipline and some sense ol responsibility in children in an attempt to prepare them to become better people.”
On the trustees’ duty to act:
• “The evidence before me is common cause. The parties seemed to have agreed that complaints were registered by the Applicant and that the action taken by the trustees was only limited to letters being written by the trustees or Managing Agent and no investigation or formal hearing ever took place. A formal investigation and a hearing would have created an opportunity to ventilate the real issues about the need to allow children to play in order to enhance their growth and development and the corresponding obligation placed on parents and or caregivers.”
5. ? PARTIES: JOSEPH MARIA BALK (NIENKE VAN SCHAIK) v MARIUS AND KIMBERLEY MATTHEWS
? Adjudicator: ADV GPC DE KOCK
Date of Order: 7 NOVEMBER 2017
? KEYWORDS:
Exclusive use rights; rule modifying effect of PQs; duet scheme; executive managing agent; short term letting
? ORDERS:
1. Order granting various specified garden and patio EU rights to each of the two units;
2. Executive Managing Agent ordered to comply with section 10 (8) of the STSMA to provide for Section GA1 and Section GA2;
3. Executive Managing Agent ordered to determine the additional contributions due in terms section 3(1)(c) of the STSMA for the rights to the exclusive use;
4. Order prohibiting rentals of less than 1 month from 1 December 2017;
5. Executive Managing Agent ordered to draft management and conduct rules and to have them approved by the chief ombud as soon as is possible;
6. No order as to the costs, each party to bear their own costs.
? COMMENTS:
The orders can be criticised on the basis that:
1. A CSOS adjudicator can in effect grant EU rights or prohibit short-term rentals, but not in general terms, only by making an order that has the effect of particular body corporate rules that grant EU rights and reasonably restrict letting rights, subject to approval by the chief ombud. The adjudicator cannot order the executive managing agent (or the trustees) to make such rules because the STSM Act does not empower them to do so.
2. The executive managing agent has the powers of the trustees, but not of the body corporate. S/he cannot approve rules that give EU rights or modify the effect of the participation quotas—only the owners, acting as members of the body corporate, can take resolutions making such rules.
? REFERENCES TO LEGISLATION (OTHER THAN CSOS ACT):
• STSMA – Sections 10(7) & (8), PMR 30 and 30(f)
• STA – Section 27A
? REFERENCES TO AUTHORITIES:
• http://hometimes.co.za/2017/09/airbnb-is-not-automatically-permitted-in-cape-town-apartments/
Graham Paddock is a specialist community schemes attorney, notary and conveyancer. He has been advising clients and teaching students for over 40 years, and was an adjunct professor at UCT for 10 years.
Article reference: Paddocks Press: Volume 16, Issue 2.
This article is published under the Creative Commons Attribution license.
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