by Marina Constas, Director BBM Attorneys

It is entirely possible that one day, in the not-too-distant future, we shall, as protagonists on the stage of the Sectional Title or Homeowner’s Association production, be able to live in close proximity to each other without having to resort to continuous dispute resolution forums.

As the position reflects now, we are quite a considerable distance from this scenario. In the first quarter of 2019, the Community Schemes Ombud service saw a total of    1 583 disputes being lodged. Out of that total, 1 385 applications came from Sectional Title schemes and 171 from Home Owners’ associations

“There is always going to be a tenuous relationship between owners and most particularly between owners and management bodies, such as Trustees or Directors.”

Tensions exist in modern cities between individual rights and collective responsibilities. Consequently, there is always going to be a tenuous relationship between owners and most particularly between owners and management bodies, such as Trustees or Directors.

Behavioural issues rate as the second most common complaint from the Ombud statistics we have available. Peppered throughout the lodged disputes, (if one has the time to go through them), are cases ranging from incessant noise nuisance, illegal parking and uncontrollable pets to unlawful smoking of cannabis on common property and annoying smoke-filled braais on balconies.

But dear readers, I ask myself – are many of the issues in our schemes not self-imposed by the lack of common sense and inability to communicate? I mean, is it really necessary to impose a ban on food deliveries into a complex? Yes, I kid you not-the Trustees in an upmarket scheme in the leafy suburb of Hurlingham have unilaterally banned the entry of any food delivery vehicles, including Uber cars into the complex. Hungry residents are forced to get into their own vehicles, as the scheme is spread out over a few kilometres and conglomerate at the gate to undertake the clandestine exchange of food and cash. And what about the Trustees at a scheme who insist on taking photographs on their phones of residents committing flagrant breaches of rules and uploading them onto the scheme’s WhatsApp group with a commentary of the crime, not to mention the Trustees who place lists of defaulting owners, in arrears with their levies, on the clubhouse notice board?

Draconian measures create resentment

I am mindful that there are reasons for the Trustees taking draconian measures-security, adherence to body corporate rules etc. However, thought must be given to the manner in which to discourage behaviours. The above examples only serve to create resentment. Without proper consultation, the perception is that owners are living in a police state. The vagaries of the mood of the management structure cannot be allowed to go unchecked. Attracting lawsuits and defamation claims should be off the agenda. A new approach is necessary.

Take for example the course of action taken by the Vancouver Metropolitan City Council in response to a report that there was a declining level of participation in community life, particularly in high- rise apartments. Their social planning team got cracking on the following initiatives: The “Hey neighbour” project, “Building resilient neighbourhoods” initiative and most interestingly, a trial of social concierges in each building.

Trustees and Directors must look to encourage positive social interaction, provide assistance to vulnerable groups and communicate in a clever manner, even taking action on environmental issues affecting the building. This takes a concerted effort from the management body, but studies such as the Vancouver example suggest an increasing recognition of the important institutional role that owners can play in broader society and a marked decline in disputes.

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