Can a Body Corporate fine an owner for, e.g. making too much noise, being discourteous to security officers, or keeping a pet, against the Conduct Rules of the complex?
Karen Bleijs firstname.lastname@example.org a colleague and sectional title expert, had this to say:
The issues of keeping pets in sectional title schemes, as well as the imposition of fines, are both extremely thorny issues, and both fall within the ambit of the Rules of a particular scheme. This means that each particular body Corporate will have its own Conduct Rules unless the generic Conduct Rules in terms of the Sectional Titles Act apply.
Two new Acts that govern sectional title schemes have just come into operation: the Sectional Titles Schemes Management Act and the Community Schemes Ombuds Services Act! (but this is by the by!)
As regards Rules and Bodies Corporate and in answer to your questions:
- A Body Corporate ONLY has the power to fine unit-owners (not tenants) subject to certain circumscribed conditions, which are fairly extensive but include inter alia the following:
- The provision permitting fining must be contained in the Conduct Rules applicable to the scheme;
- The Conduct Rules must have been approved by the unit-owners at a duly convened Special General Meeting by Special Resolution;
- The provision must be reasonable and apply equally to all unit-owners;
- A fair procedure must be followed and the provisions of the Administrative Justice Act must be adhered to – in other words fair warnings must be given to owners that have contravened the Rules that they will be fined if they continue to contravene the Rules/a Rule and the owner must be given the opportunity to rectify the situation, there must be a right of recourse and the owner concerned must be allowed to have his/her say and discuss the matter with the Trustees, the owner must know what the fine will be, and so on;
- The fine cannot continue indefinitely every month. If the Rules say “no dogs”, the owner must be placed on terms to remove the dog within a certain amount of time and if he does not, provided the Rules permit it, then he must be fined. Hereafter he must be taken to Court by the Body Corporate, or to arbitration (or now to the Ombud in terms of the new Act) to obtain an Order to remove the dog;
- The amount of the fine must be known or ascertainable; AND
- The Rules must be lodged with the Deeds Office (now with the Ombud’s Office) in order to be legally enforceable.
Conduct Rules most definitely have the ‘power of the Law’ behind them, provided that they are made in terms of the Act.
Is the power to impose fines sometimes abused? MOST DEFINITELY. This is why educating the public regarding the rights and duties of ownership of sectional title units and the law relating thereto is so critical, to avoid abuses of power.
One last thing, some sectional title schemes permit the keeping of pets and some do not allow it at all. Many schemes allow the keeping of pets subject to certain conditions. A number of others allow the keeping of pets subject to the permission of the Trustees, which permission cannot be unreasonably withheld.
Every individual case must be dealt with on its merits but fairness must prevail – so if someone moves into a scheme and they know beforehand that there is a rule that provides that: “NO PETS ARE ALLOWED”, then they must not be surprised if they bring a pet on to the premises and are required to remove it. HOWEVER, if the new owner is blind and NEEDS a dog to assist him in his day-to-day living, the situation is of necessity different, and the Trustees would be violating his constitutional rights to deny him the right to keep a dog in the scheme.