NEIGHBOUR FROM HELL A SHORT ANALYSIS OF SECTION 39 (2) ACT 9 2011 OF THE COMMMUNITY SCHEMES OMBUD SERVICE ACT

Disputes often arise between neighbors in a complex, homeowners associations or sectional title schemes. The below list is not exhaustive and illustrates some of the disputes often encountered:

-????????? Having a loud neighbor who often throws parties throughout the night

-????????? General noise complaints and consistent loud talking.

-????????? Boundary disputes: Conflicts over property boundaries, fences, or encroachments.

-????????? Parking issues: Disputes over parking spaces, blocked driveways, or unauthorized parking.

-????????? Nuisance complaints: Issues with pets, rubbish, or debris causing a disturbance or health hazard.

-????????? Property damage: Damage to shared walls, fences, or property due to negligence or intentional acts.

-????????? Tree and plant disputes: Conflicts over tree roots, branches, or plant growth causing damage or obstruction.

-????????? Water and drainage issues: Disputes over water leaks, drainage problems, or flood damage.

The Community Schemes Ombud Service Act 11 Of 2008 (“the Act”) is a statutory body enacted that regulates and governs community schemes, such as homeowners’ associations and body corporates. The very design of the act is to ensure cost effective and speedy remedies. Before the Act, a lot of disputes between owners and the scheme/associations ?would end up in our Courts, inevitably clogging the Court roll.

The main focus on this article is on Section 39 (2) which is the section that deals with “behavioral issues”. The section states the following:

“(2) In respect of behavioral issues—

(a) an order that particular behavior or default constitutes a nuisance and requiring the relevant person to act, or refrain from acting, in a specified way;

(b) if satisfied that an animal kept in a private area or on common areas is causing a nuisance or a hazard or is unduly interfering with someone else’s peaceful use and enjoyment of his or her private area or common area, an order requiring the owner or occupier in charge of the animal—

(i) to take specified action to remedy the nuisance, hazard or interference; or;

(ii) to remove the animal;

(c) an order declaring that an animal is being kept in a community scheme contrary to the scheme governance documentation, and requiring the owner or occupier in charge of the animal to remove it; or

(d) an order for the removal of all articles placed on or attached illegally to parts of a common area or a private area.”

The Adjudication Orders from the CSOS have the same legal status as that of a Court Order from a Magistrate Court and such orders are enforced in the same way as one would enforce a Magistrate Court Order.

In the matter of Heathrow Property Holdings No 33 CC and Others v Manhattan Place Body Corporate and Others (7235/2017) [2021] ZAWCHC 109 it was made abundantly clear that disputes that fall within the jurisdiction of the Act must first be taken to the CSOS and referral of such disputes to court would constitute an abuse of the Court process.

The consideration of some of these cases we must start with the Western Cape High Court judgment in the matter between The Kingshaven Homeowners Association v Phillips Botha and 2 Others(6220/2019)[2020] ZAWCHC 92 The case primary concerned a parking dispute between Mr. Phillips Botha (“Mr. Botha”) and the Homeowners Association (“HOA”). Put simply, the HOA did not want Mr. Botha to park at designated visitors parking which were allocated to visitors to the association or their members or visitors.

Unfortunately, the HOA instituted the application based on Section 38 of the Act so, it was the view of the CSOS and its adjudicator that they could not entertain this application because it should have been instituted based on Section 39, behavioral issues under the Act. This is the reason the HOA instituted an application in the High Court among other seeking that Mr. Botha be prohibited from using unauthorized parking.

The trustees had tried to reason and persuade Mr. Botha to refrain from his conduct. They offered that he rent or pay for an additional parking space to which he refused.

In the Kingshaven matter the court made the following remark “that part of it (the vehicle) is just out into the street and the other is parked in one of the parking bays on the estates that are reserved for visitors the respondent conduct in this respect is in obvious and undisputed breach of sub rules 10.1 and 10.2 of the HOA Constitution.” (para 29).

Ultimately the Court found Mr. Botha was prohibited from parking his vehicles, motor bikes, caravans, boats or trailers anywhere within the King shaven estate other than in his garages or outside within the boundaries of his wholly owned property.

Besides parking disputes that often arise in associations of schemes, another dispute that often occurs is the playing loud music and /or rowdy pets, mostly dogs that bark consistently

So next time, your neighbor plays unreasonably loud music throughout the night or consistently parks in your drive way you may approach the CSOS for resolution.

Our alternative dispute team is always ready to help client navigate these disputes and assist clients by navigating through the CSOS Act.

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