Disputes are bound to arise in sectional title complexes where people live in close proximity and share common facilities, but there are affordable, effective ways to resolve them rather than heading to court, according to Marina Constas, a specialist sectional title attorney and director of BBM Law.

In a recent webinar, Constas and Karen Bleijs, who co-authored the book “Demystifying Sectional Title”, shared their insights on how residents, tenants, trustees and managing agents can successfully lodge an application with the Community Schemes Ombud Service (CSOS).

Constas explained that fees for mediation and adjudication by CSOS have been waived. She noted that,according to the Community Schemes Ombud Service Act, 9 of 2011, any person who is a party or materially affected by the dispute can go to CSOS. “Not everyone is aware that this includes tenants in sectional title complexes. However, it excludes developers” she explained. “A developer cannot bring an application to CSOS or have a case against them.”

Constas noted that CSOS can grant orders if a dispute falls into one or more of seven specific categories which are laid out in Section 39 of the Act. These categories are financial, behavioural, scheme governance, meetings, management services, works pertaining to private and common areas, and general and other issues

Bleijs, who is a CSOS adjudicator, expanded on the behavioural category: “If someone’s behaviour in your complex causes a nuisance, you can go to CSOS. For example, if they are smoking cannabis and the smoke is billowing out of a window into your unit.”

In terms of financial issues and scheme governance, the type of disputes covered by CSOS include audits, possible financial malfeasance and unreasonable rules. “If your scheme’s financial audits are not being done annually, as required, or if you think that there are people stealing money, you can go to CSOS,” Bleijs said.

Constas reported that she had been dealing with numerous disputes around rules in recent months. “All rules must be reasonable and applied consistently for all owners. In my experience, however, many rules are actually illegal, unenforceable, unconstitutional and ill-considered. Rules are not cast in stone, and if you think that a rule is unreasonable, a case can be lodged with CSOS to have it amended or removed,” she stated.

Sectional title repairs and maintenance are also currently causing conflict, according to Constas. “Repairs and maintenance fall under the category of works pertaining to private and common areas. Buildings are not being maintained and repaired as they should be, and I am hearing about many problems, perhaps as a result of pandemic lockdowns and disruptions. A case can be lodged with CSOS to compel the trustees and body corporate to carry out repairs and maintenance.”

Constas and Bleijs stressed the importance of collecting evidence for a successful CSOS application. In the case of a cannabis smoking neighbour or other nuisance behaviour, Bleijs recommended getting statements from neighbours. “Film the nuisance behaviour if you can. If it is affecting your health, get a note from your doctor,” she added.

Another important element for a successful application is being able to show that internal dispute resolution measures have been tried and have failed. “The Ombud should not be your first port of call,” Constas noted.

While CSOS has a prescribed application form, she recommended including more information and evidence to support your argument in separate documents. “There is not enough space on the prescribed application form, so applicants should include and direct CSOS to refer to more detailed, clearly labelled annexures.

“Speak to the facts and avoid emotion. Choose which battles to wage. Do not make your application long and tedious, and use plain English, not legalese,” Constas advised. She also stressed the value of getting an attorney who specialises in community schemes to check the application before it is lodged. “Many applications are dismissed due to the incorrect drafting of the application. While applicants are generally not entitled to legal representation during the adjudication hearing, having the right attorney cast their eye over the application beforehand can help to ensure success.”

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