Andrew Schaefer

For trustees that want to create a harmonious and co-operative atmosphere in their Sectional Title (ST) schemes, the most important thing to do is ensure that they have a set of Conduct Rules that are modern, clear and specific.

That’s the word from Andrew Schaefer, MD of leading property management company Trafalgar, who says: “We get requests for help all the time from trustees who don’t know what to do about residents not following conduct rules – as well as complaints from residents about trustees who don’t enforce conduct rules, who apply them arbitrarily, or who seem to make up rules as they go along.

“And while there are clear and easy legal steps that trustees can follow to ensure greater compliance, less friction and a scheme that is much easier to manage, we find that the biggest problem in most ST schemes is that their Conduct Rules are hopelessly out of date and actually inadequate to address many of the issues that trustees have to deal with in modern schemes.

“So the first step we always suggest is for trustees to get their Conduct Rules professionally reviewed – and rewritten if necessary – by a specialist ST attorney, to ensure that they are practical, properly detailed, and applicable to current lifestyles and conditions. This latter concern applies especially to those schemes that are still operating on the Conduct Rules that were annexed to the Sectional Titles Act of 1986.

“Then step two is to get the new Conduct Rules approved by the owners in the scheme and step three to get them registered at the office of the Community Housing Schemes Ombud (CSOS). The trustees cannot make any sort of rules by themselves, and they cannot enforce any Conduct Rules that have not been properly approved and registered.”

(For details of the Conduct Rule approval process, watch the new Trafalgar webinar on enforcing conduct rules at https://www.trafalgar.co.za/webinars/)

He says that the rules must of course cover what is required of residents (tenants as well as owners) in terms of parking, noise and the keeping of pets, which account for the bulk of complaints and non-compliance issues in ST schemes. “However, they should also address security and access conditions, nuisance issues such as littering, any restrictions on the use of communal facilities such as a swimming pool, braai area or clubhouse and as many other issues as trustees can think of that might cause problems between residents or between residents and trustees.

“And the more detailed the rules are, the better. When it comes to pets, for example, it really helps when the rules are very clear under what conditions the trustees will approve an application to keep a pet, what types of pets may be kept, where they may be kept and what problems could cause permission to be withdrawn. We also suggest that the trustees keep a register of pets, with photos, so they can easily be traced to their owners if necessary.”

Schaefer says it is also very important that the Conduct Rules set out in detail the steps that will be followed when rules are broken. For example, they should note that:

• The trustees will only accept written complaints about Conduct Rules being infringed;
• The trustees will not accept anonymous complaints;
• Everyone will have the right to respond if a complaint has been made about them;
• Evidence will be required, or have to be acquired by the trustees, to verify complaints. This could include photos, audio recordings, CCTV footage, security reports, and confirmation from neighbours;
• The trustees will have the right to issue breach notices and require anyone breaking the Conduct Rules to immediately stop doing so;
• The trustees will immediately take certain other steps in the event of a second or continued transgression by the same resident. These could include the issuing of a warning to the owner of the unit concerned, the issuing of a fine or the rapid escalation of the matter to the office of the Community Housing Schemes Ombud; and
• The trustees can enlist the help of the managing agent to issue the required notices, and fines and otherwise manage and document the complaint and dispute resolution process.

On the issue of fines, he says, it is vital that these are also specifically provided for in the Conduct Rules. “Trustees can’t just start issuing fines if the rules don’t provide for this. What is more, the fines must be reasonable, and the rules should also provide for them to be added to owners’ levy accounts.”

In addition, Schaefer says, both residents and trustees need to understand that a complaint about someone breaking the Conduct Rules cannot be escalated to CSOS for mediation or adjudication unless every effort has first been made to resolve the issue “internally”.

“Before accepting a case, the CSOS will want to see a written portfolio of the actions taken to stop the transgression of a Conduct Rule and /or any dispute that arose as a consequence, and this is when it will really help to have the records provided by the managing agent, as well as any other evidence that was collected at the time the complaint was made.”

*For more advice on formulating and applying Conduct Rules, contact Andrew Schaefer at Trafalgar on 011 214 5228

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