Making sectional title rules that work: A practical guide

Sectional title schemes are like little cities. While cities have by-laws, sectional title schemes have rules which are divided into two categories: management rules and conduct rules.

Management rules

As the name suggests, management rules relate to the management of a scheme. These rules can come in the form of Prescribed Management Rules as described under the Sectional Titles Schemes Management Regulations, or as established specifically for a scheme in terms of subsection 10(2)(a) of the Sectional Titles Schemes Management Act 8 of 2011.

Conduct rules

Likewise, conduct rules are intended to regulate the conduct of owners, occupiers and visitors in a scheme. Prescribed Conduct Rules are detailed in the Sectional Titles Schemes Management Regulations, while subsection 10(2)(b) of the Act allows for schemes to create their own conduct rules.

Rules must be reasonable

The quintessence of a scheme’s management and conduct rules comes from subsection 10(3) of the Sectional Titles Schemes Management Act: all rules must be reasonable and apply equally to the owners of all units in the scheme. This reasonableness of rules becomes an imperative consideration when body corporates are attempting to change their scheme’s rules, which can only be done via substitution, adding to, amendment or repeal.

The curious case of an upper Glenwood scheme’s proposed conduct rules

Recently, I was presented with a document containing proposed conduct rule amendments for a scheme located in upper Glenwood, Durban. The scheme was a sectional title established in 1982, with two schedules of management and conduct rules registered in the Deeds Office in the 1980s. As such, the scheme had a history of registered rules that were already in effect. Much to my dismay though, the new proposed conduct rules were quite shocking, warranting an in-depth discussion into rule enforceability.

Undesirable rules relating to fines

The Community Schemes Ombud Service made their stance on undesirable rules clear in their 2021 Circular on the Amendment of Rules in Terms of the Sectional Titles Schemes Management Regulations, whereby the Community Schemes Ombud Service will not consider rules that are undesirable and unreasonable.

Fining rules are commonly regarded as undesirable when they do not outline a process to be complied with prior to the issuance of the fine, in defiance of the legal principle of audi alteram partem (let the other side be heard). Below is an example of an undesirable proposed conduct rule relating to a fining system from the abovementioned Glenwood scheme:

Any decision of the Trustees shall be communicated to the owners and their decision shall be binding and the fine imposed shall constitute a debt to the Body Corporate.

Fines, if not done in compliance with a reasonable procedure, cannot be imposed upon an owner. Furthermore, decisions made by trustees in respect of fines cannot be held as binding, especially since such fines are disputable via the Community Schemes Ombud Service. If a scheme wishes to introduce fines for transgressions, then the scheme’s body corporate must have regard for a due legal process in their rules.

Undesirable rules that discriminate against domestic workers

Domestic workers maintain the same rights enshrined in the Constitution of the Republic of South Africa (1996) as any other citizen or resident of the country. A scheme’s conduct rules should never seek to undermine any person’s right to dignity as emphasised in the Constitution.

Needless to say, I was appalled when I perused the aforementioned Glenwood sectional title scheme’s proposed conduct rules and found two separate rules that noticeably discriminated against domestic workers – they read as follows:

“The Trustees may, in their sole discretion, require all domestic workers housed on the property or in a section to be registered with the body corporate and may require such servants carry or display their identification”.

“No owner or occupier shall employ and/or house a servant on the property or in a section illegally or contrary to any law, by-law, the Act, the management and conduct rules of the body corporate.”

Notwithstanding that domestic workers are entitled to privacy under the Constitution as well as the Protection of Personal Information Act 4 of 2013, it is unreasonable for a proposed conduct rule to impose that only domestic workers must display their identification to trustees. Then by the same principle, why are contractors, owners, occupiers or visitors of the scheme not required to display their identification to trustees?

It is further archaic and discriminatory for a proposed conduct rule to refer to a domestic worker as a “servant”, then proceed to unreasonably impose conditions for the domestic worker’s private employment. Frankly, body corporates have no authority over such employment in terms of the Sectional Titles Schemes Management Act as a body corporate may only impose conditions of employment upon the body corporate’s employees.

Nevertheless, the icing on the cake was the following absurd proposed conduct rule:

“Owners and occupiers shall provide their domestic workers with the necessary toilet requirements, ie toilet paper, soap etc. Newspaper may not be used in toilets and toilets must be kept clean at all times.”

I am left quite perplexed by how a body corporate intends to inspect the state of owners’ and occupiers’ private toilets in a scheme, or how a body corporate intends to check if a person is reading a newspaper while they are in a toilet (where a person has a strict right to privacy).

Unreasonable rules

Subsequently, the Glenwood scheme’s proposed conduct rules do become stranger, viz:  

“An owner or occupier must ensure that all refuse, general or garden, is securely wrapped in bags that cannot be opened by monkeys.”

“No noise may be heard after midnight – this includes entertaining of guests etc.”

“No person shall play, run or make noise in any carport, or in any lifts, staircases, entrance areas, parking bays, or in any part of the common property.”

It is equal parts comical as it is confusing to require that owners and occupiers must wrap their refuse in “bags that cannot be opened by monkeys” – what is even meant by this rule? What about bags being torn by birds, rats or cats? Evidently, any rule that is illogical cannot be enforced.

Additionally, rules that are unreasonable lack the ability to be enforceable. Asserting that “no noise may be heard after midnight” is questionable by the standard of perception: who is supposed to be checking and hearing for noise after midnight? Also, what kind of noise should not be heard? The broadness of the proposed conduct rule invalidates it as there is no reasonable definition of this so-called “noise” proposed – it could be a neighbour’s footsteps, it could be a car on the road outside the scheme, it could be someone in the scheme sneezing in the middle of the night, etcetera. Similarly, the imposition of no “noise” in common areas is physically impossible as that would ban owners, occupiers, contractors, and visitors from even speaking while in a common area.

Vague rules

Poorly phrased and vague rules have the propensity to conflict with other rules on the basis of their ambiguity. One such example is the following proposed conduct rule from the Glenwood scheme:

“No person shall cause or permit the hitting, striking or throwing or bouncing of balls or other objects against any of the walls of a section or anywhere on the common property or on the building”.

Owing to the fact that one of the primary functions of a body corporate as per subsection 3(1)(l) of the Sectional Titles Schemes Management Act is to maintain all common property within its scheme, the above proposed rule makes no provision for any “striking” of “other objects” against common property or building walls as required for the conducting of compulsory repairs and maintenance within the scheme (such as the knocking and scraping of walls on buildings and common property for the purposes of treating mould or re-painting those walls for the scheme’s appearance).

Consequently, the proposed rule heretofore fails to consider the noise that comes with repairs, maintenance and improvements that owners and occupiers are entitled to carry out within their section (ie replacement of geysers, installation of lighting fixtures, etcetera). By the same token, this proposed rule gives no forethought to the instance of a building falling within an Exclusive Use Area wherein owners or occupiers are permitted to use such areas for recreational and sporting purposes.

Rules that defy the scope of a body corporate’s powers

Contentiously, there are two more of the Glenwood scheme’s proposed conduct rules that raise eyebrows, which are:

“Internet connections shall respect accepted etiquette and vulgar language visible to other users on IP addresses is prohibited.”

“Children may not interfere with the post-boxes, plants, decorations, name plates, fire hose reels, security systems, exterior lights etc. and especially electrical and television boards.”

The Sectional Titles Schemes Management Act, its regulations, and a scheme’s rules are intended for the use of a sectional title scheme. Under no circumstance can the Sectional Titles Schemes Management Act and a scheme’s rules usurp the authority of other national legislation currently governing internet and communications.

In furtherance, ill-defined terms such as “internet connections” and “television boards” in the context of a sectional title scheme’s proposed rules (and the relevance to the scheme therein), create further uncertainty with regard to the interpretation of such proposed rules, let alone the implementation thereof.

Non-compliant rules

It should go without saying that a scheme’s rules cannot be incompatible or non-compliant with existing legislation. Sadly, there are some proposed conduct rules I have viewed that deviate from legislation and impose a particular opinion instead. Allow me to illustrate:

“The installation and use of generators is strictly prohibited due to the noise and pollution caused…

"The use of silent inverters is permitted and encouraged when required.”

The above proposed rule favouring the use of “silent inverters” over generators is the perfect example of opinionated wording, which demonstrates the importance of a scheme’s rules being properly drafted by an attorney who specialises in sectional title law, and who can advise on the unreasonableness of such a rule. Equally, it must be noted that the Community Schemes Ombud Service will not entertain badly written rules as they have a rigorous quality assurance review process in respect of rule change submissions.

Summarily, it is safe to say that the drafting of rules for a sectional title scheme is not a task for a layperson to engage in – it is a specialised area of law requiring extensive compliance that can only be achieved by consulting an appropriately qualified legal practitioner. Remember: when in doubt, ask for professional help.

#Conviction