By Prof Graham Paddock

Prof Graham Paddock
Below is an example of a question on the discussion forum on Paddocks Club. We want to show what is available to our Community Members!

Can Conduct Rules be amended without 75% explicit consent?


Paddocks ClubIn amending the Conduct Rules for a Sectional Title complex, we need to do so by special resolution (75% agreement). We have now completed consultations with the body corporate on this. Our initial letter (with a deadline for submitting replies) met with a very poor response. In the follow-up letter, we said that if members of the body corporate didn’t respond by a second deadline, their non-response would be taken as a vote in favour of the amendments. The second deadline expired yesterday without obtaining the required 75%. May we now proceed to have the amended set of Conduct Rules lodged in the deeds office based on the notification sent advising that non revert would be understood as silent consent?


No, you cannot proceed because the BC has not taken a special resolution. A failure to object cannot be taken as an affirmative vote for the purposes of taking a special resolution in terms of the Act. For the definition of a special resolution, please see section 1 of the Act.

Unauthorised picket fence on common property


An owner erected a wooden picket fence on common property without any authorisation. The Trustees demanded that the wooden picket fence be removed, as it is not an acceptable structure, and advised the owner on the types of fencing that are acceptable providing written approval be obtained. The Owner refused to remove the fence stating that the Conduct Rules do not state what type of fence is acceptable. The Trustees, however, feel that although the rules are silent on the type of fencing, the rules cannot include every single detail and that the owner should have obtained written approval prior to erecting any structure on common property. The Trustees subsequently removed the wooden picket fence and the owner approached an attorney who now demanded the fence be restored failing the attorney holds instruction to bring a spoliation application against the BC.

What are the Trustees options?


The trustees would have been entitled to stop the building of the fence during its construction and immediately on its completion.

But once it is up and finished, the trustees were not entitled to remove it.

If the trustees suspect that this may just be a threat, they could wait for a summons. If they get one, they can decide whether to defend or to comply. If they choose to comply immediately, the legal costs will not be substantial. But they should not defend the matter unless they have advice from a local attorney who has all the facts and dates, telling them that they have a reasonable chance of success.
Article reference: Paddocks Press: Volume 7, Issue 12, Page 5

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