Property & Conveyancing
It is commonplace that disputes arise in community living schemes owing to various reasons and therefore provisions must be in place to regulate dispute resolution processes between the parties involved. In the event that one party is not satisfied with the outcome of the adjudication process, this article will look at the process as to which such party may follow on appeal in pursuit of a favourable outcome.
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Time and again in our work we receive questions with regards to Community Schemes and the Schemes Ombud (CSOS).
In this brief article, we will address a few of the pertinent questions that we receive from some of our clients and members of the public at large.
In the event where more than one adjudication forum has concurrent jurisdiction, the Plaintiff is of course at liberty to proceed with the forum of their choice.
For example, where there is a dispute with regards to a contract, the Court under whose jurisdiction such contract was concluded and the Court under whose jurisdiction the Defendant is domiciled, both retain jurisdiction. Under these circumstances the Plaintiff will proceed with either of the two Courts.
The Community Scheme Ombud Service (CSOS) is a creature of statute being the Community Schemes Ombud Service Act 9 of 2011 (the Act), which came into force in October 2016.
The CSOS registers and superintends over governance of community schemes which are defined in the Act as Share Block Companies, Homeowners Associations, Housing Schemes for Retired Persons, Housing Cooperatives and Sectional Titles Development Schemes.
At the centre of most disputes in community living schemes is the issue about the interpretation of and nature of the Conduct Rules. These rules can be by the Body Corporate or the Home Owners Association. Part of the responsibilities and/or jurisdiction of the Community Schemes Ombud Services (CSOS) include the vetting of Conduct Rules in as far as there is an obligation for these to be subservient to tenets of fairness, legality, and reasonableness.
Disputes in community living schemes were previously adjudicated upon by the Courts in South Africa. Among the eminent challenges with this was the fact that the motion procedure in the Courts system is usually an expensive and long one.
The Community Schemes Ombud Service (CSOS) is a creature of the Community Schemes Ombud Services Act (9 of 2011) which was promulgated to deal with disputes in community living schemes amongst its other responsibilities as a body.
The judgment in Kingshaven Homeowners Association v Botha And Others (6220/2019) (2020) ZAWCHC 92 raised a few interesting points which require a brief analysis for the benefit of Body Corporates and owners in community living schemes.
In this case the Homeowners Association (HOA) had referred a dispute to the CSOS against the Respondent who usually parked in visitor parking bays against the conduct rules.
The CSOS ruled that it had no jurisdiction to rule on parking bays as per the CSOS Act, and in passing also remarked that the HOA does not have jurisdiction over the visitor’s parking bays either.
Before the coming into force of the Sectional Titles Schemes Management Act (8 of 2011) and the Community Schemes Ombud Services Act (9 of 2011), disputes involving owners and Body Corporates were adjudicated upon by the Courts.
SPLUMA came into operation on 1 July 2015 with the purpose being to develop frameworks that regulate planning authorisations and promote consistency with regards to land development under a municipality’s jurisdiction.
While stand alone properties normally present no shared responsibilities apart from the owner with regards to its affairs, sectional title schemes do come with a division of responsibilities amongst the tenants and/or owners, and the body corporate.
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