In the past 8 years, few topics have sparked as much debate as that of short-term letting. Since becoming the first African country to be represented on the popular Airbnb short-term letting platform in 2010, South Africa has added more than 40,000 active listings on the site, with more hosts signing up every day. As Airbnb is only one example of short-term letting, one should refrain from using the name of this popular site as a synonym for this form of letting or from using the concepts interchangeably.

With that being said, the increasing popularity of the site and the great potential financial benefit it offers hosts has certainly probed more and more property owners to consider the possibility of short-term letting as a way to boost their income. We have found, however, that not everyone is equally enthused by the idea and many bodies corporate have expressed their wishes to prohibit such letting for various reasons. As a result, we are often asked for legal advice regarding whether bodies corporate are allowed to include such restriction in its rules. Therefore, we were most excited when we were notified that a Community Schemes Ombud Service (“CSOS”) adjudication, on just this matter, was scheduled for the 26 July 2018. We would finally be in possession of an order providing clarity on the permissibility of prohibiting short-term letting… but were we holding our breath in vain?

The adjudication order issued on 14 August 2018, following the adjudication held in July 2018, relates to a dispute between the body corporate and 3 members thereof regarding the amendment of the body corporate’s conduct rules to prohibit letting units in the scheme for a period of less than 3 months. The 3 owners, who had been making use of the popular Airbnb website to let their units for less than three months at a time, contended that this rule was unfair and unreasonable.

After confirming that due process had been followed in the adoption of the prohibiting rule and that said amended rule was subsequently approved by the CSOS, the adjudicator shifted her focus to the following questions:

    1. 1. Is the rule prohibiting short-term rentals in compliance with the Sectional Titles Schemes Management Act (“the STSMA”)?


    2. And, if so, is the rule applicable and enforceable against the 3 owners letting their units on Airbnb?

1. Is the rule prohibiting short-term rentals in compliance with the STSMA?

The adjudicator held that, when considering the above questions, one should remain mindful of section 10(3) of the STSMA, which requires that a scheme’s management or conduct rules be reasonable and apply equally to all owners of units within the scheme.

In this regard, the adjudicator emphasised that, when considering whether a rule is reasonable, one has to:

    1. 1. Weigh up the individual owners’ interest against that of the body corporate as a whole; and


    2. Consider the rule against the backdrop of South Africa’s laws as well as the intention of the legislature in drafting the STSMA.

She expressed her opinion that:

“bodies corporate, as far as reasonably possible and as far as the law allows them to, should be granted freedom to regulate themselves in a democratic way”, but also that “whether or not short-term letting can be regarded as an inherent proprietary right (which is thus by implication untouchable by decision of owners in the scheme) is not clear and in my view it will depend on the particular circumstances of each case. Owners in sectional title schemes buy into these schemes knowing that there are rules and knowing that rules may be changed with the requisite majority”.

The adjudicator finally concluded that she does not find a rule restricting short-term letting to a period of no less than 3 months unreasonable as it does not prohibit short-term letting, but rather restricts it to what she deems to be a reasonable amount of time. She further emphasised that the ombud had approved the rule and held that one should respect the rights of the owners who overwhelmingly voted in favour of the rule restricting short-term letting.

2. Is the new rule applicable and enforceable against the owners already letting their units on Airbnb?

The adjudicator advised that, while no formal restriction on short-term letting existed when the 3 owners purchased their units, different rules could not apply to different owners in the scheme and further that she is of the view that all owners should abide by the restriction “provided that the rule only becomes enforceable after a fair and reasonable notice period (probably one year). This will allow owners the opportunity to sell their units (should they so choose) and take care of existing reservations”.

This is particularly interesting in light of the fact that it is in conflict with section 10(5)(d) of the STSMA, which reads as follows:

“A substitution, addition, amendment or repeal of rules contemplated in paragraph (a) comes into operation on the date of the issuing of a certificate contemplated in paragraph (c) (referring to the certificate issued by the chief ombud following his/her approval of the substitution, addition, amendment or repeal of rules) or the opening of the sectional title register for the scheme, whichever is the latest.”

In summary, the adjudicator’s findings were as follows:

  • The rule prohibiting short-term rentals of less than 3 months at a time is reasonable and fair in the circumstances.
  • Different rules cannot apply to different owners and the owners who previously let their units via the Airbnb platform have to abide by the new rule.
  • However, the rule should only become enforceable after a fair and reasonable notice period.

Why then, were we not relieved to finally have some clarity upon receiving the adjudication order? Well, quite simply because we (and our clients) cannot use it. You see, despite sharing her thoughts on the matter, the adjudicator finally found that the CSOS Act, 9 of 2011 “does not confer any jurisdiction on an adjudicator to make an order whereby a party can be instructed to cease his/her/their behaviour in contravention of a rule” and further that the act “does not confer the jurisdiction on an adjudicator to declare a rule reasonable and enforceable.” As the CSOS has confirmed that it does not have the required jurisdiction, we find ourselves back at square one, once again trying to navigate our way through our clients’ opposing needs and echoing the adjudicator’s view that “given the uncertainty in schemes insofar as short term letting is concerned, a High Court ruling would be highly beneficial”… and so we await the High Court ruling to end this almost-decade-long debate, once and for all.

Article reference: Paddocks Press: Volume 13, Issue 9.

Specialist Community Scheme Attorney (BA (Law) LLB), Ané de Klerk, combines her work experience as a Portfolio Manager with knowledge of conveyancing and community scheme law.

This article is published under the Creative Commons Attribution license.

Back to Paddocks Press – September 2018 Edition.


  • Werner Greeff
    26/09/2018 11:19

    I had an adjudication before Ombudsman on 27 August 2018 on a two member scheme where my client wanted the other to stop using unit for short term Airbnb letting not because its Airbnb but because they were conducting a business from unit contrary its intended use per STMA…owners dont stay in their Unit and solely uses for short term letting…Ombud ruled AIRbnb not a business and not in contradiction of Act and also we indicated against the municipal zoning applicable and i.t.o STMA they have the power to instruct owner of unit to use as per zoning and Ombudsman refused to rule on that as said its Municipal matter to rule on by Council…see Case 192/WC/18 and contact me to discuss it’s a very important ruling.

    • Paddocks
      28/09/2018 09:47

      Hi Werner,

      Thank you for your comment. We would love to help, however we do not give free advice.

      We recommend contacting our consulting department for a no-obligation quote, to discuss this matter further, should you wish.

      Please call us on 021 686 3950 or email

      Kind regards,

    • HI Werner,

      Werner Greef – Please can you send me a copy of the CSOS ruling 192/WC/18 you refer to in your comment above as it is not available on the CSOS website – and when I asked for a copy of the ruling I was told it would be available “in due course” (however long that may be).
      It appears that CSOS have no qualms about an adjudicator making a ruling in direct contradiction of a ruling made by another adjudicator…..

    • Reg Taylor
      08/11/2018 05:42

      Hi Werner,

      Do you know where I can find a copy of case 192/WC/18? Our trustees are claiming the same i.e. conducting a business and want to stop short term lets.


  • Loraine Olivier
    27/09/2018 16:20

    Ons het ook ‘n stel met die Ombudsdienste afgetrap waar die bevel baie onduidelikhede bevat het en verskillende interpretasies deur die twee partye gegee is. By navraag om duidelikheid te gee watter van die twee sienings korrek is, het die Ombudsdienste ons aangesê om by ‘n prokureur aan te klop, en geweier om self duidelikheid te gee.
    Ek begin twyfel aan die effektiwiteit en korrektheid van die verhore en veral uitsprake van die Ombudsdienste se beregters!

  • Andria Solomon
    05/10/2018 09:43

    Hi Ané,

    Do you know where I can obtain a copy of this ruling?

    Thank you

  • Hi
    Is there a High Court ruling pending on this issue and if so when is judgement expected?

    Kind regards


    • Paddocks
      12/10/2018 09:50

      Hi John,

      We believe so, however we are not aware of when the judgement is expected.

      Kind regards,

  • lorraine
    13/11/2018 15:04

    Hi, I have “usufruct”, So if I move to another flat, I can rent it out, will chat later.

  • Hennie Nel
    26/02/2019 10:59

    Hi Ane, very interesting. I have another thought. you explain the the rule would only come into effect after a reasonable time. You then add that that would give the owner a chance to sell his unit. I ask myself if all factors were taken into account when the decision was made. Lets say the scheme is in a very popular holiday destination. The decision to buy the unit would have been influenced by the fact that it has the potential to rent out the unit and earn income. This would have increased the value of the unit and a higher purchase price. If this rule in now implemented it means that the income potential is seriously effected as one hardly rent out holiday accommodation for three months. The effect of the implementation therefor devalues the property value of the unit. So taking into account all that has been said and the powers of the BC etc, my question is simply this: Can a rule be adopted that undermines the value of a section and result in a capital loss to a member.

    • Paddocks
      08/03/2019 11:37

      Hi Hennie,

      Thank you for your comment. We would love to help, however we do not give free advice. Here’s how we can help:

      – We offer consulting via telephone for R490 for 10 minutes. Please call us on 021 686 3950.
      – We have Paddocks Club, an exclusive online club, to help you get answers to your questions about community schemes.

      Kind regards,

  • Janet Alexander
    23/08/2019 18:16

    Hi Ane, I own a sectional title unit which is separated into two apartments, one with one bedroom and one with 3 bedrooms. I tenant the 3 bedroom unit and live in the one bedroom unit. OUr body corporate is now wanting to change our conduct rules to restrict owners from renting out a portion of their section, which means that I will no longer be able to derive an income from my investment. Can they do this as I feel it is unjust. Thank you Janet