Rules restricting tenants in sectional title schemes
By Carryn Melissa Durham
There are two types of owners in sectional title schemes: those who reside in their units, and those who do not. The latter are investment owners who let their units out to tenants for rental income. There are various types of investment owners. It could be that a particular owner has various properties in various schemes, and rents the units out as his or her primary business activity for profit. It may also be that an owner has only one unit that is used to subsidise his or her income, or even that the owner is a retired person, that depends on the rental income. It is important that there be a sufficient market of rental property available, as not all persons are in a financial position to buy property.
I often hear that the tenants are the trouble-makers who breach the rules in sectional title schemes. It is true that the trustees must, on behalf of the body corporate, do all things reasonably necessary for the enforcement of the rules of the scheme. However, I am of the view that the body corporate should not discriminate against tenants and investment owners in the creation and enforcement of the rules.
The role of the trustees is to control, manage and administer the common property. The trustees should not unreasonably restrict or regulate the manner in which owners use their section. The trustees should not limit the proprietary rights of investment owners by restricting tenants’ rights too stringently in the rules. Here is an example to illustrate my point: an investment owner could be adversely affected if the scheme rules, in a scheme that is located in a beach town, restricts short-term letting of the sections. This would limit the rental pool of tenants that the investment owner could let the unit to, and make it difficult for investment owners to obtain the maximum rental for their section over the summer holidays.
Another example is that it would be discriminatory against tenant residents to have a rule that states that only owners may keep pets. Section 35(3) of the Sectional Titles Act 95 of 1986 (“the Act’) states that “any management or conduct rule made by a developer or a body corporate shall be reasonable, and shall apply equally to all owners of units put to substantially the same purpose”. This could be interpreted to mean that the rules only need to apply equally to owners, but I believe that in our South African constitutional context, it would be discriminatory to tenant residents to restrict them from keeping pets. Prescribed Conduct Rule 1 states that:
“(1) An owner or occupier of a section shall not, without the consent in writing of the trustees, which approval may not unreasonably be withheld, keep any animal, reptile or bird in a section or on the common property. (2) When granting such approval, the trustees may prescribe any reasonable condition. (3) The trustees may withdraw such approval in the event of any breach of any condition prescribed in terms of sub-rule (2).”
Based on the abovementioned model pet rule it is clear that both owners and occupiers are entitled to request permission to keep a pet. It is far more reasonable and inclusive to give all owners and tenants the opportunity to request trustee consent. The trustees should then apply their minds to the individual requests and consider the circumstances of each case. The fact that it is a tenant should be irrelevant in the consideration. The trustees can then impose reasonable conditions when granting their consent, and could always withdraw their approval when the conditions are breached.
Ultimately Prescribed Management Rule 69 states that the rules and the duties of owners in relation to the use and occupation of sections and common property are binding on owners, their lessees and other occupants of sections. It is the duty of an owner to ensure that his or her tenants and other occupiers, including employees, guests and their family members, comply with the rules. This is a partial re-statement of section 35(4) of the Act, which provides that a scheme’s rules “bind the body corporate and the owners of the sections and any person occupying a section“.
I suggest that the rules address the specific actions or behaviour, rather than to target the tenants with blanket bans or overly restrictive rules. To make a rule that unfairly restricts the tenants would, in my view, be inherently discriminatory and in conflict with the spirit and purpose of the Constitution.
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Thinking Inside the Box 
I am a rental agent and I applied for permission, in terms of the registered body corporate conduct rules, for approval to keep pets on behalf of my tenants. I was however advised by the managing agent, appointed by the body corporate, that in terms of a resolution taken at a special meeting that tenants are not permitted to keep pets at all, whilst owners may keep pets with prior approval by the body corporate. Surely the adoption of this rule is a discriminating practice against tenants? Your opinion regarding this form of discrimination will be highly appreciated.
Hi Melissa,
Thanks for your comment. In our view it is discriminatory for tenants to be restricted from keeping pets while owners are not. I addressed this in paragraphs 4, 5 and 6 of the article.
Regards,
Paddocks
Whilst I support the principle that ST rules may not be discriminatory, I would like to mention that non all non-residential owners are “investment owners”. In a ST scheme which is also a retirement village, many non-resident owners have bought their sections for their parents to reside in. Others have bought, intending to live in the complex themselves in due course, when they reach retirement age. Another category comprises owners who can no longer care for themselves, and let their units whilst they reside in a frail care facility.
Non-resident owners are ALSO members of the body corporate. Rules CANNOT be made without their inclusion. Sadly, often they demonstrate apathy, but complain when they are implicated about the conduct of their occupants.
Thanks for all the information
Good day, it is possible to advise what RIGHTS tenants have in a Sectional Title Scheme? For instance, if they don’t pay rent for more than 2 months – and they dont respond to letters from your Letting Agent, what can an owner do in these instances? I am requesting this for a friend – I live in a Homeowners Association complex. Thanking you, T JUTE
Paddocks posted: ” By Carryn Melissa Durham There are two types of owners in sectional title schemes: those who reside in their units, and those who do not. The latter are investment owners who let their units out to tenants for rental income. There are various types”