Property Law and Sectional Title

 

 

Yes, there are limitations. Use restrictions must be reasonable and cannot be unfairly discriminatory. They should serve the purpose of promoting harmonious living within the scheme. Rules that are deemed oppressive, unfairly prejudicial, or in conflict with the law can be challenged.

Yes, if you believe a use restriction is unreasonable or unfairly applied, you have options to challenge it:

  1. Engage with the Body Corporate: Discuss your concerns with the trustees or raise the issue at a Body Corporate meeting.
  2. Mediation: Attempt to resolve the dispute through mediation, either privately or through the CSOS.
  3. Adjudication through CSOS: If mediation fails, you can lodge an application with the CSOS for adjudication. The CSOS can make an order regarding the rule's validity or its application.
  4. Legal Action: As a last resort, you can approach the courts to challenge the validity of a rule.

 

Yes, the Body Corporate can amend the conduct and management rules. This typically requires a special resolution passed at a general meeting of the owners. A special resolution usually requires a higher percentage of votes than an ordinary resolution (often 75% of the votes, both in number and value). Any amendments must be reasonable, apply equally to all owners, and be in line with the Sectional Titles Schemes Management Act.

Yes, use restrictions apply to all occupants of a section, including tenants. Owners are responsible for ensuring that their tenants are aware of and comply with the conduct and management rules of the scheme. Lease agreements often incorporate these rules by reference.
 

Common examples of use restrictions found in conduct rules include:

  • Pet Policies: Restrictions on the type, size, or number of pets allowed. Some schemes may prohibit pets entirely or require trustee consent.
  • Noise Levels: Rules specifying quiet hours and prohibiting excessive noise that disturbs other residents.
  • Parking: Designated parking areas, restrictions on parking commercial vehicles or trailers, and rules for visitor parking.
  • Refuse Disposal: Procedures for disposing of garbage and recycling.
  • Alterations to Sections: Requiring Body Corporate approval for any structural or external alterations to individual units.
  • Use of Common Property: Rules regarding the use of facilities like swimming pools, gyms, gardens, and braai areas, including operating hours and guest policies.
  • Signage and Advertising: Restrictions on displaying signs or advertisements visible from other sections or common areas.
  • Laundry: Rules about hanging laundry in visible areas.
  • Storage of Hazardous Materials: Prohibiting the storage of flammable or dangerous substances.
  • Behaviour of Occupants and Visitors: Requiring owners to ensure their tenants and visitors comply with the rules and do not cause disturbances.


 

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Use Restrictions

Understanding and Navigating Use Restrictions in Sectional Title Schemes with VDM Attorneys

Disputes within community schemes like sectional titles, homeowners associations, and retirement villages are unfortunately common and can be complex to navigate. These disagreements often arise from the interpretation and enforcement of use restrictions within the scheme. At VDM Attorneys, we possess a comprehensive understanding of the legal framework governing community schemes, including the crucial aspect of use restrictions. We are well-equipped to provide expert legal guidance and representation to owners, bodies corporate, and other stakeholders involved in disputes relating to these restrictions, ensuring your matter is handled with the utmost professionalism and expertise.

What are Use Restrictions in Sectional Title Schemes?

Use restrictions in sectional title schemes in South Africa are legally binding rules that govern how owners and occupants can use their individual units (sections) and the common property. These restrictions are crucial for maintaining the character and harmony of the scheme, protecting property values, and ensuring compliance with relevant laws and regulations.

Sources of Use Restrictions

Several documents and pieces of legislation outline the use restrictions within a sectional title scheme

  • Sectional Titles Schemes Management Act (STSMA) and Regulations This Act provides the primary legal framework, including default rules known as Prescribed Conduct Rules (PCRs).
  • Scheme Conduct Rules Each body corporate has the authority to adopt its own conduct rules, which can amend, add to, or replace the PCRs to address the specific needs and preferences of the scheme's residents.
  • Sectional Plan This plan legally defines the boundaries of each individual unit (section) as well as any exclusive use areas (EUAs), implicitly outlining how these designated spaces are intended to be used.
  • Title Deeds The title deed for an individual unit may contain specific restrictions that apply only to that particular property.
  • Municipal By-laws and Zoning Regulations External regulations imposed by the local municipality also apply to sectional title schemes and can dictate permissible land use.

Key Principles Underlying Use Restrictions

The enforcement and interpretation of use restrictions are generally guided by the following core principles

  • No Nuisance or Interference Residents are prohibited from using their sections or the common property in a manner that causes a nuisance or unreasonably interferes with the rights and enjoyment of other owners and occupants.
  • Structural Integrity Any alterations or additions to individual units or common property must not compromise the structural integrity or safety of the building.
  • Preservation of Value Actions or changes that could negatively impact the overall value or aesthetic appeal of the sectional title scheme are typically restricted.
  • Compliance with Laws and By-laws All activities within the scheme must adhere to all applicable national and local laws, as well as municipal by-laws and zoning regulations.

Common Examples of Use Restrictions

Use restrictions can cover a wide range of aspects within a sectional title scheme. Some common examples include

  • Residential Use Rules often restrict units to residential purposes only, potentially limiting or prohibiting commercial activities. However, some schemes are adapting their rules to accommodate certain types of home-based businesses.
  • Pet Ownership Schemes may have rules limiting the type, size, and number of pets allowed, or they might prohibit pets entirely.
  • Noise Control Conduct rules typically regulate noise levels, especially during specified quiet hours, to ensure peaceful cohabitation.
  • Parking Restrictions often govern the allocation of parking spaces, the management of visitor parking, and may prohibit certain types of vehicles (e.g., commercial vehicles) from being parked within the scheme.
  • Appearance Standards Rules can dictate the appearance of individual sections (especially balconies and visible areas) and common property, potentially including restrictions on items like washing lines, satellite dishes, and the colours or materials used for external alterations.
  • Short-Term Letting Many schemes are implementing rules to restrict or prohibit short-term rentals (such as through platforms like Airbnb) to maintain the security and residential character of the community.
  • Storage of Hazardous Materials Rules commonly prohibit the storage of flammable, toxic, or other hazardous substances within individual units or on common property.
  • Alterations and Additions Owners are usually required to obtain the body corporate's approval before undertaking any alterations or additions to their units that may affect the building's appearance or structural integrity.

Exclusive Use Areas (EUAs) Exclusive use areas are designated portions of the common property that are allocated for the exclusive use of a specific owner. Examples include parking bays, private gardens, or patios. While the owner has the exclusive right to use these areas, they are still bound by the conduct rules of the scheme.

Enforcement and Amendment of Use Restrictions

  • Enforcement The body corporate, acting through its elected trustees, is responsible for enforcing the scheme's conduct rules. When a breach occurs, the body corporate can take various actions, including issuing formal warnings, imposing fines (if the rules permit), or ultimately pursuing legal action to ensure compliance.
  • Amendment To amend the existing conduct rules or introduce new ones, the body corporate must follow a specific process. This typically involves proposing the changes at a general meeting of owners and passing a special resolution, which usually requires a 75% majority vote. Once approved by the owners, the amended rules must be submitted to and approved by the Community Schemes Ombud Service (CSOS) before they become legally enforceable.

Importance of Understanding Use Restrictions

It is crucial for both prospective buyers and current owners within a sectional title scheme to thoroughly understand the applicable use restrictions. These rules directly dictate how you can use and enjoy your property, and any non-compliance can lead to disputes, penalties, and potential legal action.

Legal Advice from VDM Attorneys If you have any questions or concerns regarding use restrictions in your sectional title scheme, or if you are involved in a dispute related to these rules, we strongly recommend consulting with a qualified legal professional specializing in sectional title law. At VDM Attorneys, we have extensive experience in this area and can provide you with expert guidance, interpretation of the rules, and assistance in resolving any related disputes. Contact us today to ensure your rights and obligations within your community scheme are properly understood and protected.