It’s 5 pm, and you are getting ready to say goodbye to the stressful workday, wind down and catch up on your favourite series. By some miracle, traffic is flowing freely, and you reach your apartment complex at a reasonable time. Then, something tells you to check your post box. And there, under the seemingly endless property brochures, is an ominous envelope. It tells you you’ve broken the rules of the complex, and you must pay up. You might be in disbelief, but receiving fines in a sectional title in South Africa is entirely legitimate. Still, certain processes must be followed for the fine to be valid.
What does the law say about receiving fines in a sectional title scheme in South Africa?
The Sectional Title Act allows for body corporates (a collective name for all the owners of the units and common property within a sectional title scheme who have been nominated to manage and maintain the property) to establish their own rules and code of conduct for the relevant sectional title.
Of course, while the law provides for this, there are certain parameters that body corporates must adhere to. More specifically, Section (35)3 of The Sectional Title Act states: “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”.
What would generally be considered reasonable reasons for body corporates to impose fines?
Generally speaking, the code of conduct is implemented to help ensure the safety and harmonious living of all tenants, minimise any form of persistent nuisance and discourage the damage of any of the common property in the complex.
The most common inclusions are rules around:
Another aspect that ensures these penalties are enforceable is the fact that a fair and reasonable process must be followed to enforce fines.
The procedure of imposing fines in a sectional title scheme in South Africa
It’s important to keep in mind that the body corporate rules cannot exclude a home owner’s common law rights to natural justice and due process. “Taking enforcement steps to deal with transgressions requires that the owner or occupier who is affected by the decision must be notified in writing and given an opportunity to remedy the breach and to make representations at a trustee meeting,” explains Dr Carryn Melissa Durham, a sectional title attorney at Paddocks Private Consulting.
- Whoever is complaining must do so in writing, detailing the problem, and send it to the body corporate.
- The body corporate must then inform the owner/tenant of the complaint in writing and give them a reasonable amount of time to remedy the breach or respond.
- The person who the complaint has been made against must be given as much detail about the alleged transgression and the broken rules.
- This notice should serve as a warning, and the person must be made aware that if the behaviour persists, they will be fined.
A second notice must be issued if the behaviour or incident in the first notice persists or escalates.
- The owner or tenant must be informed of this persistence and invited to a meeting with the trustees or body corporate to explain or defend their actions.
- The person must be given a reasonable amount of time to prepare their side of the story.
- If the problem persists, the trustees must give the person the opportunity to present their case at a hearing.
- At the hearing, the person can show evidence and call/ cross-examine any witnesses.
- After the hearing, once both sides of the story have been heard and considered, the trustees can deliver their verdict and state whether they will be imposing a fine.
“It’s important to note that a financial penalty is only valid if the steps mentioned above have been taken. If you feel as though you have been fined unfairly and haven’t been given a chance to state your case, you can approach the Sectional Title Ombudsman,” states Adv. Jackie Nagtegaal, Managing Director of LAW FOR ALL.
How sectional title scheme fines are determined in South Africa
- The board of trustees and body corporate must call a meeting from time to time to discuss and determine an acceptable amount for each transgression.
- The amount must be reasonable and proportionate to the rule being broken.
- The fine amount must be stipulated in the first and second notices
What happens to the money after I pay the sectional title scheme fine?
The law is unambiguous here: any financial penalty paid to the trustees must go towards the general upkeep and maintenance of the apartment complex/property.
How to stay on top of things
Make sure you have an updated copy of the apartment block’s rules and code of conduct. It’s also advised to subscribe to the block’s newsletter and not ignore any notices you might receive in your post box.
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