Your Neighbours Leaking Bathtub Should Not Be Your Problem In A Sectional Title Scheme

It is not uncommon to, at some point in your life, find yourself living in a sectional title scheme. Living in significantly closer proximity to your neighbours can mean fertile ground for disputes. At the very cusp of sectional title living is the responsibility on yourself or your landlord to take reasonable care of your unit so as to avoid being a nuisance to your neighbour and vice versa applies to your neighbour.In some cases efforts to resolve an issue with your neighbour or body corporate without formal or legal intervention leaves you high and dry and your bathroom moist (with mould and mildew accumulating by the day). Try as we may, certain matters are not within the scope of being resolved “neighbourly” or amicably, and it may further be aggravated by the fact that you are attempting to resolve an issue with an uncooperative neighbour or body corporate.

The previous lack of an effective dispute resolution mechanism served as a restraint in resolving community scheme disputes out of court. Certain changes in legislation have however seen the Community Schemes Ombud Service Act 9 of 2011 (“the Act”) give birth to one of your more user-friendly options in resolving a dispute, a welcome alternative to costly litigation.

The Act, central to its purpose, established a Community Schemes Ombud Service (“CSOS”) to provide a platform for dispute resolution specific to community schemes.

The services provided by the CSOS include dispute resolution between the body corporate, members, occupiers and managing agents ins a cost-effective and timely manner, without having to resort to the courts. In performing its functions the CSOS must promote and monitor good governance of community schemes.

Any person who are materially affected by a dispute may lodge an application with the CSOS in terms of section 38 of the Act. The relief that may be sought (and must be referred to in your application) is set out in section 39 of the Act.

Examples of orders that may be applied for are:

1. Financial issues, for example an order declaring that a contribution levied on owners or occupiers, or the way it is to be paid, is incorrectly determined or unreasonable, and an order for the adjustment of the contribution to a correct or reasonable amount or an order for its payment in a different way;
2. Behavioural issues, for example an order that particular behaviour or default constitutes a nuisance and requiring the relevant person to act, or refrain from acting in a specified way;
3. Scheme governance, for example an order requiring the association to record a new scheme governance provision consistent with a provision approved by the association;
4. Meetings, for example an order requiring the association to call a general meeting of its members to deal with specified business;
5. Works pertaining to private areas and common areas, for example an order requiring the associating to have repairs and maintenance carried out.

The application must be submitted by physical delivery or submitted electronically. The e-mail addresses for electronic submission can be retrieved from the CSOS website for the province in which you wish to make application.

Once the application has been submitted you will be advised of the case manager assigned to your case who will, firstly consider whether there are any prospects of settlements and if so, the matter will be referred to conciliation. Similar to the CCMA, the conciliation phase of the enquiry will be purely held in an attempt to settle the matter on a more “informal” basis. If, however, these settlement negotiations fail, the matter must be referred to adjudication.
 
The functions of the adjudicator are to act swiftly, investigate the application and determine whether it would be appropriate for him/her to make an order. Legal representation is not allowed during the conciliation or adjudication unless the adjudicator and other parties agree thereto.
 
An adjudicator’s order is enforceable in a Magistrate’s or High Court. Once the adjudicator’s order has been lodged with the administrative staff of a court it must be registered as an order of court.
 
Despite the advent of new and improved sectional title legislation and the forums that came with it, some complex disputes are better left to the courts and it may prove to be a better idea to involve your legal representative to assert your rights in this regard.
 
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)