Disputes involving sectional title schemes and body corporates, usually also involve your neighbours. It is for this reason that there should always first be attempted to resolve any difference or dispute amicably. We recommend either by visiting the neighbour, fellow trustee or body corporate member, or all three, before proceeding with letters from lawyers, which may be perceived to be threatening, even though not the intent.

Should the amicable attempt to resolution be made in person, it is important to reduce it to writing, even if after the fact. However, the nature and complexity of the difference or dispute should be evaluated carefully before making any decisions. Fundamentally though it is very important that the owner of a sectional title unit takes responsibility for his/her unit. This includes the maintenance thereof, any damages in the unit, and the damages his/her unit or something in the unit may cause a neighbour’s unit or property.

Legislation – old and new
Due to the sensitive nature of differences and disputes in sectional titles and body corporates, it is important that it can be well regulated in the cases where amicable resolutions have either failed, or is not possible. Currently, the Sectional Titles Act No 95 of 1986 as amended ( the “Act” ) and the regulations thereto, prescribes the processes to be followed in disputes and the resolution thereof, as well as the duties and powers of the trustees of body corporates.  However, amongst other reasons, due to the increasing number of homeowners in sectional titles complexes and other community housing developments, more “user friendly” legislation were drafted and made public in 2011.

The Sectional Title Schemes Management Act No 8 of 2011 ( hereinafter the “STSMA” ) and the Community Schemes Ombud Services Act No 9 of 2011 (hereinafter the “CSOSA” ), which is yet to become operational, will be used to manage sectional titles and disputes relating to sectional title schemes. The STSMA will mainly focus to assist body corporates to manage and regulate sectional title schemes, whereas the focus of the CSOSA will aim to provide for the establishment of the Community Schemes Ombud Services.

Thus, a dispute resolution mechanism in sectional title and community schemes. The above acts will become operational once the regulations thereto has been proclaimed, which date is not yet known. The ombudsman thus created in terms of the CSOSA has been established, but is not operational as of yet.

The office of the ombudsman has received hundred’s of matters through its website, however can at this stage only provide complainants with advice. Only once the new legislation becomes operational will the ombudsman’s office be able to adjudicate matters in terms thereof. This will provide a far more cost effective method of resolving disputes than arbitration or litigation in court. 

Ombudsman in terms of the CSOSA
As mentioned above, the purpose of the CSOSA is to provide a legal structure to monitor and control the administration of sectional title schemes and to deal with disputes in these schemes by effectively providing affordable, as well as effective dispute resolution service in the community or sectional title schemes. It is important to note that sometimes an issue can be erroneously considered a dispute and referred to the ombudsman, whereas the correct process would have been court litigation. An example hereof is given in Body Corporate of Greenacres v Greenacre Unit 17 CC and 1 other – 2008 (3) 167 (SCA).

In this case the owner ignored a demand for payment of levies, or simply refused to pay the levies, therefor no dispute was shown. Should the owner have been able to show cause that the levy amount was incorrect, then would this have been a suitable dispute which would be able to be referred to the ombudsman. The dispute involving levies not paid, due to it not being determined correctly, for instance would be a case where it will be preferable to approach the ombudsman’s office.

Section 39(e) of the CSOSA states the ombud “may make an order for the payment or re-payment of a contribution or any other amount”. This could possible lead to confusion by being interpreted that the ombud’s office can be used as a platform for collection of undisputed levies, where in fact the correct avenue in this instance would have been a court of law.

The actual impact of the STSMA and CSOSA will only become known when there have been case referred to court in order for it to be judicially interpreted and tested. The provisions of the above acts need to be interpreted in the courts in order to know exactly when it is necessary to refer, for example, a case where the owner defaults in levy payments to a court or to the ombudsman.

Conclusion

Due to the complexity and sensitivity of certain matters, it is not always possible to resolve disputes amicably, or without seeing legal professionals to assist with complex legislation, the interpretation thereof, and obtaining advice from experts in the fields. It is therefore advisable that where there is uncertainty regarding the correct or wise steps going forward in a difference, dispute, or even seemingly simple collection matter, rather obtain the advice of an attorney before making a decision that can cause any financial damage.

Written by André Nortjé, Schoeman Law