In an estate or sectional title scheme, it is challenging to ensure that everyone will stick to the conduct rules. To support a harmonious living environment, the body corporate sometimes needs to enforce the rules and issue fines to the transgressors. This raises the question of what the powers of the body corporate are, in terms of issuing and enforcing fines.
Each body corporate may choose what rules to formally incorporate into their code of conduct unless a rule is already part of the conduct rules in terms of the Sectional Titles Schemes Management Act. Any rule made and incorporated into the code of conduct has to be reasonable, fair and equally applied to all owners and residents. This is necessary to ensure that subsequent fines, based on the breach of a rule, are enforceable.
A written notification of a fine must be sent to, and received by, the owner or resident.
The correct process to be followed:
1. Complainant(s) to lodge complaint
A complaint must be lodged in writing or through an incident report to the trustees or the estate’s managing agent.
2. Notice of particulars of the complaint
The owner and the tenant, or the resident, (the offender) must be given a notice containing the particulars of the complaint as well as reasonable time to respond to the complaint. The offender must also be given enough information regarding the incident, including the rules that he or she may have broken. He or she must further be warned that if he or she persists with such conduct or contravention, a fine will be imposed.
3. Second notice
Should the offender persist with the conduct complained of, a second notice may be issued in which it is noted that the contravention is continuous or has been repeated. The offender must then be invited to a trustee meeting where he or she will be given an opportunity to present his or her case.
4. The hearing
Before a fine can be imposed, a hearing must take place. In the meeting, witnesses may be called to testify in favour of the offender and the offender may present his or her side of the story. The complainant(s) who lodged the complaint may also be cross-examined.
Once the hearing is over, the trustees must review the evidence presented by both sides and make a decision on whether or not to impose the fine.
If a fine is imposed, the amount should be reasonable, substantial and proportionate to the purpose of the penalty.
For further information regarding sectional titles schemes, please contact:
Robert Ferrandi | Partner
Areas of Expertise: Property Law | Conveyancing
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)