A Paddocks Sectional Title Lifestyle Blog
By Carryn Melissa Durham
I often get asked questions about house rules. Recently a question was posted on the Paddocks Facebook page:
In this blog post I will discuss the issue of whether “house rules” made by trustees are valid and enforceable in sectional title schemes.
It often occurs in practice that pre-existing Schedule 1 rules made under the Sectional Titles Act 66 of 1971 (“the 1971 Act”) contained a provision entitling the trustees to make house rules. These rules were not filed at the Deeds Office and dealt with the health, safety, control, use and cleanliness of the common property.
Professor Graham Paddock addressed this issue in a Paddocks Club video (with acknowledgement to Professor CG van der Merwe). Their view is that these rules did not become part of a scheme’s management rules when the Regulations under the Sectional Titles Act 95 of 1986 (“the Act”) came into operation on 1 June 1988. There are various reasons for this view.
Section 35 of the Act sets out a strict procedure for when management and conduct rules may be substituted, added to, amended or repealed. This provision governing management and conduct rules has created a system of checks and balances that precludes the circumvention of these rules by allowing the trustees to make rules for the control and management of the scheme.
The body corporate exists and the trustees hold office under the Act and their powers are derived either expressly or by necessary implication from the provisions of the Act and the regulations. Since there is no provision in the Act or the regulations, which gives the body corporate or the trustees the power to make house rules, they do not have such power.
The fact that the rules prescribed under the 1971 Act only remain in force to the extent that they are not incompatible with those prescribed under the Act suggests that the legislature wanted to create a template for scheme rules which could not be deviated from easily.
There are two considerations with regard to enforcement of the rules. Sections 35(4) and 38(j) of the Act both state that the body corporate are responsible for the enforcement of the management and conduct rules and for the control, administration and management of the common property for the benefit of all owners. The trustees cannot make and enforce rules regulating the use of a section. Furthermore, the body corporate is expressly empowered to enforce the management and conduct rules. This cannot be construed to confer similar powers in respect of house rules. These rules are therefore not enforceable.
It is often argued that these house rules (also referred to as “trustee directives”) shall only provide directions as to the practical application of a conduct rule. It is my view that trustee directives or house rules will often be regulatory or restrictive in their nature, and should be dealt with in the management or conduct rules. Furthermore, trustees do not remain in office indefinitely, and the mood or feeling will change from one set of trustees to another.
The process of adopting rules by unanimous or special resolution means that the owners are included in the decisions as to how the scheme is governed. The obligation to file management and conduct rules means that they are publically available. If trustees make rules that are not filed there will be a lack of transparency which could lead to confusion as to what rules are applicable to the scheme. It is for these reasons that I do not recommend any management or conduct rule that allows for the trustees to make house rules.
I must note that people often refer to house rules when they actually mean the conduct rules that are filed at the Deeds Office in terms of section 35(2)(b) of the Act, and which are enforceable. This mistake in terminology could be due to the fact that the Rental Housing Act 50 of 1999 requires that the landlord must ensure that a copy of any House Rules applicable to a dwelling must be attached as an annexure to the lease. The Rental housing Act defines “House Rules” to mean the rules in relation to the control, management, administration, use and enjoyment of the rental housing property. In the context of sectional titles this will include the management and conduct rules in terms of section 35(2) of the Act.
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i stay in a Heritage building in Cape Town, the building is a residential and commercial building, my concern is that the body corporate can’t get the code of conduct rules passed due to a huge retail section that is voting against the code conduct rules for more than 3 years now. I am sad that this beautiful building is not being well kept, this is suppose to be a non smoking building but there a cigarrettes stubs everywhere and the trustee’s feel like there hands are tied.how can the body corporate pass the conduct rules in this heritage building that i love as it is a huge part of my culture, if the retail section has the majority numbers. Can the body corporate go a more legal route in order to pass the code of conduct rules.
thanking you in advance, your help is much appreciated
Hi Marco, yes you can and it’s via the Community Schemes Ombud Service, “the CSOS”. This matter is definitely something our consultants can advise you on. Feel free to call us on 0216863950 and we will advise you at our special rate of R390 for a 10 minute consult. Alternatively, you can email firstname.lastname@example.org for other consulting options.
For more information on applying for an order with the CSOS, visit: http://csosguide.paddocks.co.za/
On the repainting of our st complex there is an argument regarding what must the corporate body paint and what must the owners paint on the outside of the property. some say that everything on the outside of the units must be paid by the corporate body and others say only the unit walls on the outside and not the steel beams that upholds the roof tiles and is open. The same applies to the walls between the units which was build by the developers the same time that the complex was build?
Another problem is that the wooden window frames were painted by previous trustees and now the current trustees refuses to paint the frames which should not have been painted previously, and this is now in a bad state.
What you have described in your question sounds like common property. The body corporate is responsible for the maintenance and repair of the common property, unless a rule in terms of 32(4) of the Sectional Titles Act 95 of 1986, reallocating this responsibility, has been passed by the members and lodged at the local deeds office.
I am a chairperson of a body corporate with 30 flats. we have house rules but it is not registered at the Deeds office. Can we enforce them on our tenants and owners? If not how must be go forward with registering it at the Deeds office? Thanks for your help.
Thanks for your comment. If the rules have not been lodged at the Deeds office, they are not enforceable. If they are conduct rules, they would need to be passed via special resolution, and if they are management rules they need to be passed via unanimous resolution. Once approved by the members, two trustees would need to sign a resolution in terms of section 35 of the Act and file the rules and resolution with the local deeds registry. If you are based in the Western or Eastern Cape our consulting team are able to assist you in this regard.
I’m new to the property market and purchased my first property, a sectional title property in April last year, and received the keys in August. Before I purchased I enquired if the place was pet friendly ( as I have a small jack russell) and the estate agent found out and told me it was. In January 2016, we looked after a friends dog (a 13 yr old jack russell) for the weekend and unfortunately when they came to pick him up, he was attacked by their other dog so now we are looking after him indefinitely. I also went to Cape Town end of Jan to pick up my dog. Last week I received a signed letter from the body corporate( in high Afrikaans, and my home language is English) saying we are only allowed one dog as per the the “Deeltitle wet” – May 2015 and the other dog has to be gone by the 12th as well as they are barking and annoying the neighbours around us as well as the complex behind us. When I received the letter I asked the woman to please tell me when are they barking as I need to know if it’s because they are barking ‘for the fun of it’ or barking with a purpose ( have had no response), I also stuck my head over the wall and asked the couple staying in complex behind me ( who also have a dog) if mine were barking all day and the husband said he didn’t really notice. Since then, we have gone out and voice recorded the dogs to see when they bark and are now keeping them outside as this is when they are the quietest. When I moved in, one neighbour introduced herself and I assumed she was part of the body corporate as she is the one who told me what the levies were and gave me the banking details and the insurance stuff, but at no point was I given any rules and regulations of the body corporate by either the estate agent or the body corporate. I phoned the municipality and asked how many dogs one is allowed to have in a sectional title place and I was told 2. How do I proceed?
Thanks for your comment. This is a large matter and would need to be dealt with via our consulting team. For an obligation-free quote, contact us on email@example.com or 0216863950.
I live in a ST complex built in the 1980’s. The conduct rules had initially been drawn up and registered inaccordance with those contained in the prescribed rules in annexure 7 to the regulations. At the time there had been no provision for security rules, but in 1995 the body corporate was forced to erect palisade fencing and security gates with remotes. Negligent residents contributed to the increasing incidents of housebreaking and vehicle thefts by leaving their cars outside overnight, with remotes inside. By 1999 we had contracted a 24-hour security service. All this necessitated amending our conduct rules by the inclusion of a safety and security section, which was duly approved by the body corporate at a special general meeting in 2003, and registered with the Registrar of Deeds. In finalising the amended rules the trustees were assisted by a resident lawyer, who also scrutinised and updated some of the existing rules.
The point is that it takes a little bit of effort to do it the right way, not only for the purpose of running the scheme,but to protect the residents from ‘cowboy’ trustees who would issue random and ill-conceived ‘house rules’ at will. Trustees are not always familiar with their legal obligations towards the owners, and could easily abuse ad hoc house rules that have not been approved by the body corporate and have no legal standing, to ‘discipline’ owners or residents they do not like.
I am the chairperson of the BoT of a Block of Flats with 104 Flats in Sunnyside / Pretoria and I am a strong believer in amended / added on Conduct rules. They go more into detail than the STA Conduct Rules and are specific to a block of flats.We went through the correct prescribed procedures and they are checked for the legal correctness and filed at the Deeds Office. They are distributed not only to all owners but also to all flats [ responsible tenant ]. With these rules, security personnel, caretaker and trustees stand on firm ground when problems arise with residents. They are VERY ! detailed rules to prevent residents argueing ” Where is it written “. Experience has shown that everything in relation to the control, management and administration within a block of flat HAS TO BE IN WRITING. Verbal agreement, rules etc. means nothing for most residents. The typical excuse ” I did not know ” falls away and the excuse ” I did not read it ” is not accepted. Additionally we are distributing from time to time leaflets to all flat with reminders of specific Conduct Rules. Keep your residents informed. Very important !!! But everything must be within the framework of South African legislation. I have seen ” House Rules ” which are still living in the time before 1994 without being changed.
And I quite agree, Sir. We have “house rules” that are registered at the Deeds Office and therefore enforceable. Our gravest concern is the growing culture of non-payment that appears rife in Gauteng.
Good Day to you, I am, as a new Chairperson, on a Body Corporate dealing a lot at the moment with whether Conduct Rules are legal or not. I am going through them and when re-done will get them passed by Deeds Office. Unfortunately we have had many Trustees in the past, who have had a “because I say so” attitude. This does not sit well with me. Can you tell me if the roads in a complex are considered to be governed by the rules of the road as in, public roads? Do we get to say that if you go the wrong way around a traffic circle, we, the Body Corporate, will fine you?
Thanks in anticipation of any help you can give.
Thanks for your comment.
Many sectional title schemes have registered rules in place governing road use within the scheme, such as speed control. However, the issue normally arises relating to the governing and enforcement of such a rule/s. As long as the rule is reasonable and applied equally, the process for amendment and lodgement is followed, and due process in its implementation is adhered to, such a rule should be in order.
I too am a firm believer in detailed rules so as to leave no room for “questioning” or as you put it “where is it written”.
Personally I don’t believe the standard conduct rules give enough explanation or go far enough leaving them open to questioning and possible legal action. To this end we are at the moment going through all our rules and ensuring there is no room for questioning the rules.
We have looked at other Bodies Corporate rules to get ideas and would like to request If it possible a copy of your rules. Once we have an overview of the various rules, we will restructure our rules to ensure they cannot be questioned and have them registered at the Deeds office.
Frank da Canha
Apologies Horst – my email address is firstname.lastname@example.org
Frank da Canha
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