Children’s behaviour is a common source of conflict in community schemes, with residents often reporting that they feel powerless to get parents to manage the behaviour of troublesome children.  

The matter came under the spotlight in a recent adjudication at the Community Schemes Ombud Service, which should provide hope for residents regularly disturbed by the actions or behaviour of children in their schemes.

The applicant, Crystal Gardens Body Corporate, in Rooihuskraal, Gauteng testified that the current dispute revolved primarily around non-compliance with the Conduct Rules by the respondent; specifically, that the scheme had been experiencing problems with the behaviour of the respondent’s children since 2016.

In his decision, Adjudicator Andre Andreas found in favour of the applicant, based on both the section 39(2)(a) of the CSOS Act as well as the scheme’s rules.

Complaint

According to the applicant, the respondent’s children had on several occasions damaged both private and common properties within the complex.

At the hearing, the applicant testified as follows:  “The tenants’ unsupervised children create constant disturbance, for example, screaming, yelling and shouting; running up and down the staircase of other units;  leaving toys lying around on common property and thereby obstructing vehicles; playing with water; deliberately trespassing by playing in other tenants’ gardens without their permission, deliberately playing in the entrance/exit areas; transgressing the 16:00 to 18:00 playing rule; and using the communal garden as a toilet.”

The applicant further testified that the Body Corporate had written several letters to the respondent requesting compliance with the Conduct Rules, but to no avail.

CSOS Act specifically addresses nuisance behaviour

In his order, Andreas said there is a duty on owners to tolerate and to endure to a certain extent each other’s reasonable exercise of his/her ownership rights, and a further duty on owners to exercise their powers and rights within the normal and acceptable limits of reasonableness.

In terms of section 39(2)(a) of the CSOSA, an application may be made for an order that particular behaviour or default constitutes a nuisance and requiring the relevant person to act, or refrain from acting, in a specified way.

Bound by scheme rules

Andreas further referred to the Supreme Court of Appeal case between Mount Edgecombe Country Club Estate Management Association v Singh & Others in March 2019, where the judge found that when the respondents chose to purchase property within the estate and became members of the Association, they agreed to be bound by its rules.

Drawing from that judgment, on the facts before him, Andreas accordingly found in favour of the applicant.

The parties’ attention was also drawn to Section 57 (1) of the CSOS Act of 2011 which states: “An applicant, the association or any affected person who is dissatisfied by an adjudicator’s order, may appeal to the High Court, but only on a question of law.”

Also read: /https://www.estatelife.co.za/csos-appeal-procedure-evolving/

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