Ask a lawyer – Does the community scheme ombud apply to duets?
I read your articles on the Community Schemes Ombud Service (CSOS) and the new Sectional Title Schemes Management acts.
What I can’t get clarity on (I’ve even emailed the CSOS people with no response), is whether these laws apply to duets? I don’t see any exclusion other than that we don’t have to hire a curator as we are only two members.
Here are some of the details as to why applying this act to duets makes NO sense to me:
- I stay in a duet which has only the outside bathroom registered as community property between my neighbour and I.
- We have separate bills for water, sanitation, rates, electricity, refuse removal.
- We each have insurance covering our entire part of the erf and our building each.
- We don’t share any rates or levies.
In this context, these changes in the acts do not make feasible sense. For example:
Do I need to keep reserve funds now for my own municipal bills, which have nothing to do with my neighbour or the sectional scheme?
Do we need to then set up rules between myself and the neighbour which have to be approved by the community scheme ombudsman?
Do I need to have an annual general meeting with my neighbour to approve the finances which we do not share at all?
The act says the body corporate MUST have insurance. I have my own insurance and so does he which includes our building and portion of the erf each. How must I possibly insure anything else (the 2m² outside bathroom)?
Do we need to hire auditors? We don’t even share any bills. What exactly will they audit?
If I want a dog/cat/bird do I have to get written permission from my neighbour?
If you maybe know if this is applicable, or which channels I must follow to find out, please let me know. – Eduard
Hi Eduard, after taking some time to consider the question of whether the Sectional Title Act No. 95 of 1986, the Sectional Title Schemes Management Act No. 8 of 2011, as well as the Community Schemes Ombud Services Act No. 9 of 2011 is applicable to duets, or duplexes, is not as clear cut as one might hope. One cannot simply conclude that the aforementioned legislation applies to all duets, as you must consider a number of factors, including how the land is registered, how it is subdivided, and who owns the various subdivisions. It is not necessarily the type of building that will give us this answer.
As a point of departure, we consider the meaning of the terms “community scheme” and “development scheme” as defined in the legislation under consideration.
The Community Schemes Ombud Service Act provides the definition of a community scheme to be the following: “community scheme” means any scheme or arrangement in terms of which there is shared use of and responsibility for parts of land and buildings, including but not limited to a sectional titles development scheme, a share block company, a home or property owner’s association, however constituted, established to administer a property development, a housing scheme for retired persons, and a housing cooperative as contemplated in the South African Co-operatives Act, 2005 (Act No. 14 of 2005) and “scheme” has the same meaning.
The Sectional Title Schemes Management Act applies to a scheme which is defined as a development scheme and the act provides the following definition: a “development scheme” means a scheme in terms of which a building or buildings situated or to be erected on land within the area of jurisdiction of a local municipality is or are, for the purposes of selling, letting or otherwise dealing therewith, to be divided into two or more sections.
Although many of the cumbersome provisions and duties placed on body corporate members would be absurd to apply to a duplex such as that you mentioned, we are of the opinion that any land divided into two or more sections in terms of which there is shared use of and responsibility for any part of the building or land is subject to the provisions of Community Schemes Ombud Service Act, and the Sectional Title Schemes Management Act.
On questions of uncertainty in law, we are guided by the purpose of the legislature. Could it be that the legislature intended the acts in question to apply to a duet? Having regard to the duet in question, we cannot say that it was, especially considering that the owners have separate municipal accounts, rates and levies for their respective portions. However, until such time as the courts provide clarity on the position, we must take it that the acts are indeed applicable.
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Who is Claire Laurent?
Claire Laurent, candidate attorney at SSLR, obtained her LLB degree from the University of Pretoria in 2014, and due to her academic achievements she was placed on the Dean’s Merits List during 2013 as well as 2014. She joined SSLR during January 2015, and is currently completing her articles at the firm.
She has been placed in SSLR’s residential property department, and finds great joy in assisting landlords with all residential-related disputes, including the drafting of demand and cancellation letters, instituting eviction proceedings and rental recovery.