In terms of section 38(1) of the Community Schemes Ombud Service Act 9 of 2011 (“the CSOS Act”) any person or association, who is party to or materially affected by a dispute, may lodge an application with the CSOS.

The application must be in the manner prescribed, lodged with the CSOS, and accompanied by the prescribed application fee as required in terms of section 38(2) of the CSOS Act.

The application must set out:

• the relief sought;
• the name and address of each person the applicant considers to be affected materially by the application; and
• the grounds on which the relief is sought.

If applicable, the application must include a request for discount or a waiver of adjudication fees as required in terms of section 38(3) of the CSOS Act.

Jurisdiction

The CSOS Act does not give the CSOS unlimited jurisdiction in the sphere of disputes in community schemes. The CSOS is a creature of statute, and can only provide relief, or give orders, for certain types of applications or matters. The type of relief sought is limited to one or more of the following 28 orders listed in section 39 of the CSOS Act.

The orders are divided into seven categories, namely:

• Financial issues;
• Behavioural issues;
• Scheme governance issues;
• General meeting issues;
• Management services issues;
• Works pertaining to private and common areas; and
• General and other issues.

Financial issues

The financial prayers for relief include orders relating to taking out, increasing or recovering money under an insurance policy; the payment or adjustment of levies; the audit of the association’s accounts; and an order requiring a tenant to pay to the association and not to his or her landlord, all or part of the rent payable under a lease, from a specified date and until the specified amount due by the landlord to the association has been paid.

Behavioural issues

The behavioural prayers for relief include orders relating to behaviour or default that constitutes a nuisance; and an order requiring the owner or occupier in charge of a pet to take specified action to remedy the nuisance, hazard or interference or to remove the animal if it is being kept in a community scheme contrary to the scheme governance documentation.

Scheme governance issues

The scheme governance prayers for relief include orders requiring the association to approve, record, amend, substitute or remove scheme governance provisions.

General meeting issues

The meeting prayers for relief include orders requiring the association to call a general meeting to deal with specified business; or declaring that a meeting was not validly convened; or an order declaring that a resolution purportedly passed at a meeting void or is invalid;

Management service issues

The management services prayers for relief include orders requiring a managing agent to comply with the terms of the contract of appointment and any applicable code of conduct; or an order declaring that the appointment is or is not terminated.

Works pertaining to private and common areas

Prayers for relief around this issue include an order requiring the association or unit owner to have repairs and maintenance carried out; an order declaring that the association’s decision to reject a proposal to make improvements on or alterations to common areas is unreasonable; an order requiring the association to acquire, within a specified time, specified property for the use, convenience or safety of owners or occupiers, not to acquire specified property, or to dispose of specified property, within a specified time; and an order declaring that an owner or occupier reasonably requires exclusive use rights over a certain part of a common area; or an order obliging an owner or occupier to accept obligations in respect of a defined part of a common area.

General and other issues

The prayers for relief on general and other issues include an order requiring the association to make access to information or documents available within a specified time; or any other order proposed by the chief ombud.

Paddocks is a specialist sectional title and home owners’ association law firm that provides education through online courses, workshops, books, consulting, community forums and more.

For further information, visit https://www.paddocks.co.za.

By Dr Carryn Melissa Durham, Specialist Sectional Title & HOA Consultant BA (Law) LLB LLM LLD (Stellenbosch)

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