Pros & Cons of Fines for Schemes
Conduct Rules are imperative in all Community Schemes to ensure a harmonious atmosphere between all residents. But how does one ensure that all residents adhere to the Conduct Rules and what recourse can be taken against repeat offenders?
These days it is common for Sectional Title Schemes and Home Owners Associations to implement fines for repeat offenders. It is important to note that fines and the process that that will be followed is written into both the Management Rules and Conduct Rules of these schemes.
MANAGEMENT RULES AND CONDUCT RULES
Why does fines need to be written into the Management and Conduct Rules?
The word “management” is defined as “the act, manner or practice of managing: handling, supervision, control. The Management Rules therefore controls or regulates the functions of the Body Corporate or Association. The implementation of fines is a management issue.
The word “conduct” is defined as “the manner of guiding or carrying oneself; personal deportment; mode of action; behaviour”. The Conduct Rules therefore regulate, manage or control the behaviour of residents in their sections or on common property. This will relate to the amount of the fine and or how the relevant issue is to be dealt with.
PROCESS TO AMEND MANAGEMENT RULES AND CONDUCT RULES
For any amendments to be written into the Management and Conduct Rules it has to formally be adopted by all members of the community scheme. This would need to be done by means of a unanimous resolution.
Once a unanimous resolution has been obtained, the amended rules needs to be submitted to CSOS and will only be valid and enforceable once it has been registered with CSOS.
REQUIREMENTS WHEN DRAFTING RULES
Rules needs to be carefully drafted to ensure that they are reasonable, apply equally to all owners and occupiers and be appropriate to the scheme. And most importantly that they comply with all the other South African Acts and Regulations.
The following are some of the questions that needs to be asked:
- Does the rule discriminate in any way against any particular person or group of people?
- Does the rule comply with all other government laws and legislation, like the Consumer Protection Act, Conventional Penalties Act, Promotion of Administrative Justice and the Constitution?
- Does the rule comply equally to all owners and occupiers?
FINE PROCESS
The rules must set out each step that needs to be taken from the initial warning to the appeal process.
A defaulter must be given the opportunity to appeal the warning or fine at any time, giving his reason for the appeal. It is up to the board of Trustees or Directors to approve or decline the appeal. In both cases the Trustees or Directors must prove why they declined or approved the appeal.
The rules also need to further state that should the defaulter refuse to accept the decision of the Trustees or Directors, they may refer the dispute to CSOS.
OVERVIEW
Imposing of fines could deter residents from breaching the rules. But it could also become a long drawn out expensive process should the offender refer the dispute to CSOS and if it is found that their constitutional rights have been infringed in any way.
It is always better for Community Schemes to consider making use of the mechanisms afforded to them by CSOS to enforce the rules and lodge a dispute with CSOS against an offender than taking matters into their own hands.
How LevyTate can help you
LevyTate Managing Agents will assist you with the management of all your community schemes’ financial, legislative and administrative requirements. For more information contact us on info@levytate.co.za