FAQ’S

When parking in the bay of another or in visitor or other bays, the consequences should be considered:

1. The legitimate user of that bay is then required to use another bay. This causes a knock-on effect of incorrect bays being used. Residents become frustrated and irritated, which detracts from the convenience and benefits of residing in an estate. Security and management are required to invest resources in identifying the culprit/s and sending notifications to them, which results in more ill-feeling.
2. Using a bay intended for disabled drivers results in that person having to park in a bay that is not designed for wheelchair access, and which is not located near a building entrance. Using a bay allocated for disabled persons is not acceptable on so many levels.
3. The estate has a limited number of visitor bays. All visitor bays belong to the Body Corporate (the owners) equally and in undivided shares. They are intended to be used exclusively by visitors (non-residents/owners) to the estate. Occupants using a visitor bay, or visitors using a bay for an extended period, results in legitimate visitors having to park outside, which may compromise their safety. This should not be necessary if the visitor bays are used in the manner for which they are intended, which is a quick turnaround of vehicles and visitors.
4. Requests are also received regularly for the re-allocation of bays. This is not possible as all bays are allocated on the Sectional Tile plan of the scheme, which is filed at the Deeds office. Bays are legally allocated to units which cannot be amended by management re-allocation. It is the responsibility of owners and residents to ensure they are comfortable with the allocated number of bays to their unit/s, as well as the location/s, prior to purchasing or renting a unit in a Sectional Title scheme.

1. The internal portion of a unit is private property, where freedom of expression and individual tastes can be expressed by way of paint colours, furnishing, appliances, accessories, and the like. The exterior of the building, whilst not necessarily Common Property in all instances, depending on the plans and layout of the scheme, has bearing on and impacts all owners and residents.
2. We have all driven past buildings where the balconies are cluttered with laundry, pot plants, bicycles, appliances, and other household goods, and we all find this aesthetically displeasing. Often a family outgrows their home, and then personal belongings spill over into areas that impact on their neighbours to make way for additional family members of new “stuff.” This is not acceptable, it is aesthetically displeasing, and it detracts from the perceived value of that scheme.
3. Window dressings are a cause of disagreement in all Sectional Title schemes. Torn curtains badly hung drapes and broken blinds & shutters; all contribute to an air of neglect for the entire estate.
4. There are also insurance, Occupational Health & Safety, and maintenance issues to consider:
   • Owners contribute to the Body Corporate building insurance by way of their levy contribution, which includes a portion for the Common Property areas and facilities. The Body Corporate has a responsibility to ensure that the owners and occupants of the scheme comply with all insurance regulations and requirements. Failure to do so, may result in claims being rejected.
   • Occupants are responsible for their household insurance cover. Claims will, in all probability, be rejected if household items & furniture, sporting equipment and other items not meant to be exposed the elements, are damaged while stored externally on balconies and patios.
   • All areas of the scheme must comply with building regulation specifications and requirements. Load bearing issues, water damage & waterproofing membrane failure as well as electrical overloading resulting in electrical distribution boards and wiring being damaged, are only a few of the many maintenance challenges that are consequential to this clause of the Conduct Rules is not being adhered to.
   • Inclement weather, especially intense winds, affect high-rise buildings. Fierce winds can dislodge items that are not securely in place, causing serious harm to those below as well as structural and other damage to infrastructure.

Littering is disrespectful to those with whom we share our environment, and it is life threatening to the creatures who inhabit the planet with us. It is not necessary to list the number of deaths, mutations and disfigurements that are occurring to the sea and land animals because of plastic pollution especially. Litter must go somewhere, whether it is carried there by wind, water, humans, or animals; it does not disappear on its own. If it is not correctly and appropriately discarded, it lands up where it causes harm. Living in areas where littering is rife or where it collects once carried there by the elements, is also soul destroying for those who are exposed to it daily.

In residential estates, especially high-rise buildings, frequent complaints are received from occupants whose balconies are the receptacle for cigarette butts, eggs and other food items, and even empty plastic containers. Having to clean up after others inside your own section, especially when hygiene is currently paramount, causes deep distress for these residents. Objects thrown from heights are dangerous and can cause harm to anyone below. Hot ash and cigarette butts not extinguished properly, as well as hard objects, also damage property and infrastructure.

Those who believe that it is the duty of the cleaning staff to pick up the litter discarded on the floors of the parking bays when vehicles are cleaned out, in the lifts, the corridors and elsewhere on the Common Property, are misinformed. The staff are appointed to clean and disinfect the extensive communal areas of the scheme, and they work according to a very tight schedule. They take pride in their work, and they are affected negatively by littering. Having to pick up the mess of others is demeaning, and it often results in the work schedules not being met as they run out of time.

A culture of littering in a scheme soon detracts from its aesthetic appeal. It is the residents’ responsibility to ensure they take all litter to their own bins, or deposit it in bins located on the Common Property. Those refuse bags are disposed of, after being sorted for recycling, in the appropriate manner in accordance with the scheme’s refuse policy.

1. Not everyone is suited to proximity living. Consideration for and awareness of others and the surroundings, as well as the ability to reside in harmony with neighbours, should be deliberated when deciding on a suitable place to call home.
2. The Sectional Title Schemes Management Act prescribes that an owner / occupier of a section must not create noise likely to interfere with the peaceful enjoyment of another section or another person’s peaceful enjoyment of the common property.
3. It is inconsiderate to inconvenience and disrupt other residents and noise pollution can be distressing as it is invasive.
4. The word nuisance comprises of multiple aspects. Aside from noise pollution caused by adults behaving badly, it can also be noisy pets, active and vocal children, high pitched sounds emanating from appliances or loud TV volumes, the banging of doors, and it can include pervasive and strong cooking, or other, smells. Cigarette smoke and in many cases marijuana smoke are particularly offensive to others.
5. Invasive and inconsiderate behaviour becomes intolerable after a while. Complaints are then lodged with the security officers who must investigate them and try and diffuse the situation, most often dealing with people who are inebriated and aggressive; in many cases, the reaction / response team is called to site. The administrative processes to manage these incidents is onerous and, in a scheme, where this becomes part of the culture, it eventually starts monopolising the resources of the Body Corporate.
6. Notwithstanding these five previous points, there is also an expectation when choosing to reside near others, that there is a certain amount of tolerance, robustness of character and the ability to accept noise and nuisance levels to a degree.

1. Security officers play a significant role in a residential scheme. Aside from attending to their primary security functions, duties, and responsibilities, because they are on site 24 hours a day, 7 days a week, the responsibility of monitoring and helping to maintain “law and order” falls to them.
2. Transgressions of the Conduct Rules where intervention by the security officers is required, ordinarily take place at night; often people are inebriated at the time.
3. The officers are regularly verbally abused and their requests or instructions, ignored.
4. Interaction with the security officers should always be kept cordial and respectful. Their authority to make these requests or to issue instructions, can be deemed as coming directly from management and the Board of Trustees.
5. Should anyone take exception to being asked to comply with something, or if they would like to enquire further about the event, this should be raised with the operations managing agent via email the next day.

The Constitutional Court ruling decriminalising the consumption of cannabis in private spaces means that South Africans can now smoke cannabis (marijuana) in the privacy of their own homes / unit. This includes private balconies and patios.

Nuisance caused by smoking can only be addressed in terms of the Conduct Rules if that is included in the Rules and there has been a breach of the Rules. There is a provision in the Sectional Title Schemes Management Act which states that owners or occupiers of sections must not do anything within their section that will have a ‘material negative effect’ on the value or utility of any other section or exclusive-use area.

The smoke nuisance can be brought to the attention of the tenants and owner of the unit advising that the smoking is causing a nuisance to neighbours and the tenants will be requested to be more considerate.

This is a matter that can be dealt with between and by the affected and responsible neighbours/parties, and not the Body Corporate. Upon written request, the contact details of the owner of the unit can be provided in terms of Regulation 27(4) of the STSMA to resolve the issue. We suggest you speak to your neighbours because most often people are not aware their actions are causing annoyance to others.

If this matter persists after you have asked them to be more considerate (and I suggest you document it), then you have the option to lodge a complaint with the Community Schemes Ombud Service (CSOS) for an alternative resolution. Details are on their website: https://www.csos.org.za/how-to-complain/, CSOS – 080 000 0653 / 010 593 0533 / info@csos.org.za.

The right of the Body Corporate to take and use images for infringements is substantiated by the Sectional Title Schemes Management Act (STSMA) and the Sectional Titles Act (STA). The Act empowers the Body Corporate, represented by the trustees, to secure the common property of the scheme, and to record and document any breaches, by its members and occupiers, of the Act and the rules of the scheme.

The provisions that are relevant in this instance are set out in terms of section 37(1)(r) of the Act, which states a body corporate shall control, manage, and administer the common property for the benefit of all owners. Prescribed Management Rule (“PMR”) 28(2) of Annexure 8 of the Regulations to the Act, further provides that the trustees shall do all things reasonably necessary for the control, management, and administration of the common property in terms of the powers conferred upon the body corporate by section 38 of the Act. In this regard, section 38(j) of the Act provides that the body corporate may exercise the power to do all things necessary for the enforcement of the rules and for the control, management, and administration of the common property.

Balconies for example face onto common property and the standard of housekeeping of these balconies impacts on the aesthetics of the estate. As a balcony is visible from other balconies and/or sections as well as form the common property, the owner of the section only has a degree of privacy. Consequently, if they choose to place an item on their balcony, which is visible to other residents and to the public, then they do not have the right to complain about photographing it for the purposes described.

Images are used only for the purpose they are intended which is to request compliance with the Rules; if images are not used, residents tend to deny the infringement and a tedious conversation ensues which wastes everyone’s time. Aside from sending the image to the owner and occupant, images are not shared with third parties and are only shared with the management of the scheme and/or the security service provider where necessary, all of whom are bound by the requirements of the Protection of Personal Information Act (POPIA).

1. (STSMA). It is noteworthy that at a CSOS training presentation Johlene Wasserman, the CSOS Manager of Governance, Compliance & Enforcement advised scheme executives to exercise caution before facilitating any social media groups, citing POPIA concerns, and the concern that group members would stop using the required formal communication channels to lodge complaints, which results in CSOS not being able to uphold transgression notifications and penalties.
2. The administrator of the WhatsApp group would have to ensure there is compliance with the POPIA.
   • Disappearing messages may need to be activated to ensure that information is not stored indefinitely, irrespective of POPIA requirements.
   • Section 19 of the POPI Act requires an organization to ensure that suitable measures are in place to maintain the integrity and confidentiality of information pertaining to owners and residents by preventing loss, damage, and unauthorized access to this data. The question to be asked is whether, by opting in and agreeing to abide by the rules, is a sufficient precaution to take by the Trustees to maintain the integrity and confidentiality of the information provided on the group. The subject of information security is complex and includes policies, processes, roles and responsibilities, technology e.g., cybersecurity controls, contracts with services providers, confidentiality agreements and so on. In view of this, opting in and agreeing to abide by the rules by the Trustee will not suffice.
   • An opt-in would not constitute consent. The provision of consent to the processing of a data subject’s personal information must be given in conjunction with a clear and appropriate purpose. This can be included in a Privacy Notice/Policy which should be made available to data subjects via a link on the social media platform i.e., WhatsApp group. The provision of consent in accordance with this would be valid as there would be a legal basis for it. It should also be remembered that the Responsible Party (body corporate/HOA) has an obligation to provide proof that consent was obtained (section 11 (2) (a) where consent is used as the basis for processing personal information. Note: There are other legal bases for processing personal information, the most used one in residential estates is where personal information is required for the performance of a contract. Agreeing to the estate rules, etc. constitutes a contract between the resident and estate.
3. Ecliptic is often asked to facilitate social media platforms for Bodies Corporate, a request that is declined. From our experience, it is unlikely that all residents will participate in a WhatsApp group, as confidential contact details are publicised, and residents (rightly so) do not trust that other residents will not share their personal information. It would be impossible to prove which member of the WhatsApp group violated POPIA and privacy. These types of groups are ineffective due to bullying, inappropriate comments and posting of information that is not relevant to the group, even if there is a strong administrator. Members are open to victimisation, as the unit number is known. The Trustees also need to think carefully about administering or facilitating any type of social media for their scheme as these allow a platform for venting and for publishing misinformation. Communication from The Board to owners and residents is best addressed through formal channels.

Apart from common law offences relating to alleged wrongful and unlawful conduct, it is also an offence if proven, in terms of the Prevention of Organised Crime Act, 121 of 1998, which may result in a unit being seized. This is obviously a drastic step, and which would only occur in the event of the police investigation culminating in criminal proceedings being instituted in respect of the allegations, and convictions being obtained against the relevant parties, where such relief is appropriate.

Re-allocation of private parking bays is only possible in certain circumstances and will require a special resolution from members if the bays are EUAs created in terms of the Conduct or Management Rules, or registration in the deed’s office, depending on how the EUA was created originally. It is the responsibility of owners and residents to ensure they are familiar with the allocated number of bays to their unit/s, as well as the location/s, prior to purchasing or renting a unit in a Sectional Title scheme.

The internal portion of a unit is private property, where freedom of expression and individual tastes can be expressed by way of paint colours, furnishing, appliances, accessories, and the like. The exterior of the building and portions of units visible from the common property, whilst not necessarily Common Property in all instances, depending on the plans and layout of the scheme, has bearing on and impacts all owners and residents.

The Sectional Title Schemes Management Act prescribes that an owner / occupier of a section must not create noise likely to interfere with the peaceful enjoyment of another section or another person’s peaceful enjoyment of the common property.

While smoking can be prohibited on Common Property, it cannot be disallowed in units which is private property. However, the right to smoke must be balanced against the nuisance caused by smoke to neighbouring residents.

A NEIGHBOUR SMOKES CIGARETTES CONTINUALLY ON HIS PATIO AND THE SMOKE DRIFTS INTO MY UNIT, CAUSING ME DISTRESS. CAN THE ESTATE MANAGER ASSIST ME?

• The estate manager who acts for and on behalf of the body corporate is unable to assist. It is advisable for the complainant to speak with the person in question directly as the matter is not a body corporate issue.
• The Tobacco Products Control Act doesn’t apply to Sectional Title schemes or to private property.
• According to the Sectional Titles Act Section 44 (1)(d)(e) residents have rights and duties within a scheme but residents are also expected to have a reasonable ability to withstand adverse conditions.
• If a resident can prove that the ‘nuisance’ significantly affects them (note that allergies to smoke can’t be used as an argument), even though they have a reasonable ability to withstand adverse conditions, they can pursue this actionable nuisance via arbitration as per Prescribed Management Rule (PMR) 72.
• There is no statutory definition of nuisance or unreasonable interference as it is so broad and therefore Common Law applies.
•  Smoking in Sectional Title Schemes only becomes a body corporate issue / duty if it relates to the scheme’s conduct rules and its management of common property. As far as the Sectional Title experts are concerned this will always be an issue between owners / residents because a scheme would not insert an anti-smoking or smoking-nuisance clause in its rules as it infringes on the rights of residents as per Section 44 of the Act, and the smoking of cigarettes in South Africa is a permitted activity.

CAN I SELL MY HOME WITHOUT AN ELECTRICAL CERTIFICATE OF COMPLIANCE OR IF IT IS OLDER THAN TWO YEARS?

In terms of Regulation 7, “the user or lessor may not allow change in ownership if the Certificate of Compliance is older than 2 years.” And then in terms of Regulation 10, it is a criminal offence not to comply with this regulation. Read more.

CAN I EMPLOY A FOREIGN NATIONAL AS A DOMESTIC WORKER OR GARDENER?

Residents may employ a foreign national as a domestic worker or gardener, that is a personal decision, but they must be aware that to do so, if the person in question doesn’t have legal status to work / live in the country, means breaking the law. The Body Corporate or Home Owner Association cannot prevent a resident from doing so, and cannot refuse access to the employee on those grounds. The access control identification tag issued by residential estates is issued to control access into the estate only, and in no manner or form condones, acknowledges or disputes the status of the employee. The Body Corporate or Home Owners Association cannot be held liable when a resident employs a foreign national who is not authorised to work / live in South Africa. Read more.

WHAT IS AN ELECTRICAL COMPLIANCE CERTIFICATE FOR ELECTRIFIED FENCING AND HOW DOES THIS AFFECT ME AS A HOMEOWNER IN A SCHEME?

Regulation 12 of the Electrical Machinery Regulations, 2011 imposes an obligation on the user of an electric fence system to have an electric fence system certificate of compliance. The requirement does not apply to a system in existence prior to 1 October 2012. However, as with an electrical compliance certificate, this certificate will be required where an addition or alteration is effected to the system or where there is a change of ownership of the premises on which the system exists if the change of ownership takes place after 1 October 2012. Read more.

Owners contribute to the Body Corporate building insurance by way of their levy contribution, which includes a portion for the Common Property areas and facilities. The Body Corporate has a responsibility to ensure that the owners and occupants of the scheme comply with all insurance regulations and requirements. Failure to do so, may result in claims being rejected.

I HAVE NOT RECEIVED A LEVY STATEMENT FOR THE PAST TWO MONTHS, WOULD YOU URGENTLY SEND ME A COPY?

Ecliptic Estate Management deals with the operational issues within the estate. Please contact the managing agents / administrators who are responsible for the financial portfolio. it is also important to note that the financial administrators (managing agents) do not attend to operational matters. All matters relating to the operations of the estate, be that related to security, gardens, maintenance, municipal outages, implementation of the Conduct Rules and the like, must be addressed to Ecliptic Estate Management. If queries are sent to the administrators, these are referred to us in return, which delays the resolution.

I AM AN OWNER IN A SECTIONAL TITLE ESTATE. MAY I REQUEST THE FINANCIAL DOCUMENTS OF THE ESTATE?

• Owners may request the monthly balance sheet from the managing agent at any time, however the debtors age analysis will not be provided to anyone other than a trustee of the board.
• Owners may also request the minutes of the board meetings.
• It is important to note that it is far more productive to attend a meeting to avoid matters being misconstrued or taken out of context. Reading minutes or financial documents without being privy to the surrounding circumstances can cause confusion and neither the board or its service providers will entertain lengthy discussions on these matters with owners. If owners have an interest in the machinations of the estate, they should attend a board meeting.

WHOSE RESPONSIBILITY IS IT TO PAY THE AMOUNT TO COUNCIL FOR THE RATES CLEARANCE CERTIFICATE?

It is the seller’s responsibility to pay the full amount required by the council for the Rates Clearance Figures to the transferring attorney. Read more.

WHAT ARE LEVIES, WHO IS LIABLE FOR LEVIES AND WHAT HAPPENS IF I DON’T PAY MY LEVY CONTRIBUTION?

• Levies are the contributions, usually paid in monthly instalments, which each owner makes to the scheme’s running costs. The levy payable by an owner is calculated on the basis of the participation quota of the section(s) s/he owns. An owner who is entitled to exclusive use rights must pay the costs attributable to the upkeep of that area.
• The person who is the registered owner of the unit is responsible to pay that levy. Bear this in mind when entering into a contract to buy or sell a unit.
• The Body Corporate or Home Owners Association can take legal action to recover unpaid levies, with all recovery costs debited to the defaulter. All owners in a scheme have to pay a levy and any owner who fails to pay their levy, while continuing to enjoy the benefits of living in the scheme, is doing so at the expense of all the other owners. An owner who is in arrears with his or her levy may not vote at general meetings of the Body Corporate, except for proposed special or unanimous resolutions. The Body Corporate is entitled to charge interest on arrears.

Harmonious communal living is dependent on a delicate balance between respect for the laws which govern the Estate and the desire to form good neighbourly relations; it is only when everyone living in the Estate strives to maintain this balance that the value of communal living is fully realised. Whilst residents are expected to display respect and courtesy towards their neighbours, Sectional Title Legislation does require a certain robustness of character by those residing in a Sectional Title estate.

Not everyone is suited to proximity living. Consideration for and awareness of others and the surroundings, as well as the ability to reside in harmony with neighbours, should be deliberated when deciding on a suitable place to call home.

MY DOMESTIC WORKER ONLY COMES IN ONCE A WEEK. WHY DO I HAVE TO REGISTER HER? WHY CAN SECURITY NOT CONTACT ME FROM THE INTERCOM WHEN SHE ARRIVES, AS THEY DO FOR VISITORS?

Domestic workers are not categorised as visitors. Once inside the estate for the day, they have unlimited access to the Common Property, and in most instances, the resident at work and cannot monitor the movements of the staff member. Domestic staff are required to be registered and are issued with an estate identity tag for the days when they work within the estate. This is also for ease of use for the resident, as the security officers don’t have to bother the resident for access whilst at work.

MY NEIGHBOUR IS NOISY WHAT CAN I DO?

A late night party or a blaring stereo are obvious examples, but what of the noise generated by the likes of someone having a conversation late at night? Noise can be a tricky issue because what is “excessive” or “unreasonable” noise? These descriptions are subjective, and one must bear in mind that close-quarter living requires a certain degree of tolerance regarding noise. The sound of voices, the moving of a furniture item or someone walking in high heeled shoes, are all things one would expect to hear from time to time. The Conduct Rules of the estate must be taken into account, :

If someone is hammering a picture into a wall at midnight or regularly talking in a loud voice late at night or early in the morning, perhaps a case can be made. Outside of this however, one must consider what is fair and reasonable, and must be aware that the Sectional Titles Act requires that those who live in a Sectional Title estate have some ability to withstand a certain level of noise and are robust in constitution; we must always be careful not to turn any estate into a place where the residents are unable to enjoy living there as they are afraid to pull a chair out or walk around their unit without having the rule book thrown at them.

POSTAL DELIVERY – HOW DO I RECEIVE POST AT MY RESIDENCE?

In most estates there are no post boxes installed for individual use. It is preferable in South Africa to have a dedicated postal box at either the Post Office or another service provider such as PostNet. Should residents choose to receive post at the estate, it will be stored in the guardhouse for collection. Any post not collected may be placed under the doors of the units by the security officers (if there is a roaming guard), if the gap under the door allows for this and if the unit number is visible on the post itself. Post not collected within a month from the guardhouse, if we are unable to slide it under the unit door or if the unit number is not listed, will be discarded.

THERE IS THE MOST ANNOYING LITTLE SNAPPER DOG IN ONE OF THE NEIGHBOURING UNITS THAT BARKS INCESSANTLY. IS THERE ANYTHING WE CAN DO ABOUT IT?

GEYSER ISSUES – WHAT DO I DO?

This issue is dealt with Section 68(1)(vii) of the Prescribed Management Rules which states an owner: “shall maintain the hot water installation which serves his section, or, where such installation serves more than one section, the owners concerned shall maintain such installations pro-rata, notwithstanding that such appliance is situated in part of the common property and is insured in terms of the policy taken out by the body corporate.”

In other words, an owner is responsible for maintaining the hot water geyser and the pipes supplying water to the geyser, and the pipes running from the geyser to the unit. This is irrespective of whether the geyser is situated in the ceiling or anywhere else on the common property. The Body Corporate insurance will most likely cover the maintenance / replacement of a geyser, however the owner will still be responsible for paying any excess. Make sure to check if a geyser is still under warranty before proceeding with any work.

I HAVE INTERNAL DAMP ON MY WALLS – CAN YOU PLEASE HAVE THIS FIXED?

MY UNIT WAS HANDED OVER BY THE DEVELOPER FOR OCCUPATION APPROXIMATELY A YEAR AGO; WHAT MAINTENANCE / DEFECTS IS THE DEVELOPER STILL RESPONSIBLE FOR?

As per the Act published in Government Gazette number 19418, the following applies:

Chapter III – Protection of Housing Consumers

(b) the home builder shall:

• (i) subject to the limitations and exclusions that may be prescribed by the Minister, at the cost of the home builder and upon demand by the housing consumer, rectify major structural defects in the home caused by non-compliance with the NHBRC Technical Requirements and occurring within a period which shall be set out in the agreement and which shall not be less than five years as from occupation date, and notified to the home builder by the housing consumer within that period;
• (ii) rectify non-compliance with or deviation from the terms, plans and specifications of the agreement or any deficiency related to design, workmanship or material notified to the home builder by the housing consumer within a period which shall be set out in the agreement and which shall not be less than three months as from occupation date; and
• (iii) repair roof leaks attributable to workmanship, design or materials occurring and notified to the home builder by the housing consumer within a period which shall be set out in the agreement and which shall not be less than 12 months as from occupation date.

I AM UNHAPPY WITH A SERVICE PROVIDER AT OUR ESTATE. CAN I BROADCAST THIS USING A SOCIAL MEDIA PLATFORM?

The answer is unequivocally no! Not only is that unprofessional as the service provider should be placed in breach by the Body Corporate / Home Owners Association as per their Service Level Agreement, but it could land you in hot water. Read more.