Sectional Titles: Which rules apply here?

To own or rent a property in a sectional title can place far more responsibility on the owner or tenant with regards to compliance with rules and regulations than may be applicable to the owner (or tenant) of a full title property. This is necessary in order to protect the rights of all the owners and tenants in order to allow everyone the full use and enjoyment of their property. If you own or lease a unit in a sectional title scheme, read further and take note of the broader range of rules that may be applicable to you.

The conduct of an occupier of a sectional title is not only subject to the provisions of the Sectional Titles Act (‘the Act’), but also the management and conduct rules created by the Act.

The management rules contain provisions regarding the management and administration of the scheme, the determination of levies, meetings and voting rights etc., which are reasonably neutral in relation to the nature of the scheme. The conduct rules on the other hard relate more to the nature of the scheme and the day-to-day conduct of the owners and occupiers.

It is the task of the trustees of a scheme (who as the representatives of the owners) to ensure that the rules of the scheme are properly applied. Rules by themselves, however, cannot provide the necessary harmony in a sectional title environment. For this the intent of all the owners and tenants are required. Owners and tenants must strive to live harmoniously together, to recognise the authority of the sectional title management and be prepared to contribute positively towards the scheme.

It often occurs that the anti-social conduct of a few occupiers (eg. playing loud music till late in the night) can disrupt the harmony of the sectional title neighbourhood and cause responsible owners and tenants to suffer from this conduct. In the same way the non-payment of levies can cause the legal entity of the scheme to fall into financial crises with overdue municipal accounts piling up and necessary maintenance being neglected, which in turn affects the resale value of all the units in the scheme.

It is unfortunately a reality that the Act and the standard rules (namely the management and conduct rules) are less strict regarding the application of sanctions within a scheme. Trustees must often stand powerless as a few occupiers blatantly ignore the rules of the scheme. The best remedy for this situation is to amend the management and conduct rules in order to allow the trustees to make use of effective penalty sanctions. It must be noted that penalty sanctions in the form of ‘house rules’ are not enforceable and should rather be avoided.

The creation of enforceable rules in terms of which penalty sanctions can be applied, requires specialised drafting and trustees should not attempt this without having obtained appropriate legal advice. But it can be done. All rules created or amended by the legal entity of the scheme must be reasonable and be applicable to all owners of similar sections in equal fashion. If an amended rule does not meet this test, a court may find the rule to be unenforceable. Also note that an amended rule will only be enforceable once it has been filed with the office of the Registrar of Deeds.

January 27, 2012

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