European and South African law perspectives on the efficacy of sanctions to confront chronic rulebreakers in condominium developments
Cornelius van der Merwe
Unit owners living in a condominium scheme are often obliged to accommodate their neighbours to a significant degree. Although they have presumably chosen to buy into a particular scheme because of commonly shared lifestyles, sentiments, and practices, condominium communities in a multicultural society are rarely homogeneous. They typically include owners and tenants with potentially diverging interests and lifestyles. Furthermore, market forces1 and fluemating membership due to individual mobility and mortality could mean that a condominium conununity will become less homogeneous over túne and that its internal dynamics and makeup will be in constant flux.2
The aún of a condominium development is to achieve social harmony in an intensely diverse community where the objects of ownership, the individual units, must be collectively governed. As unit owners and tenants live in proximity and shar e common facilities, amenities, and spaces, the most extensive freedoms inlierent in thefr ownership (fee shnple) need to be restricted. A condommium development can only flourish w'hen each owner surrenders a degree of the freedom they have enjoyed hi a stand-alone house.3 However, a unit owner does acqufre genuine ownership of thefr unit, in the same way as landownership is still regarded as ownership despite being subject to numerous environmental, planning, and public law’ restrictions. Hie unique characteristics of condominium ownership justify the conception that such ownership, despite numerous limitations, remains genuine. Hiese characteristics are that die object of condominium ownership is a destructible building and not indestructible land, as with a stand-alone house. Furthermore, the structural mterdependence of units in a condominium development must be preserved to prevent the collapse of die building and disintegr ation of the units.4 The proximity of units requir es a stricter application of the concept of nuisance to harmful behaviour of unit owners and thefr families and tenants? Finally, social harmony in a condominirun development could only be maintained if unit owners adhere strictly to the statutory obligations, bylaw’s, and house rules that regulate condominirun living. Only then might owners and tenants reap the benefits of condominitun living, which include quality common facilities and amenities and community stability.6 Striking the correct balance between individual and community interests and needs is often very difficult.7
To obtain a degree of harmony, condominium statutes and bylaws restrain freedoms by limiting an owner’s use and enjoyment of their unit and tire common property while penalising contraventions. Tire condominium board of dir ectors is given powers to amend the rules or enact new ones to cater to unforeseen circumstances.8 Tire efficient enforcement of these restrictions is believed to preserve stability, foster harmony, protect the rights of owners, and ultimately benefit the entir e condoniiniiun community.9 There is a ‘social need’ on the part of unit owners and their controlling bodies to enforce compliance with obligations and rules that are constantly and deliberately flouted. Unit owners and condoniiniiun boards, like municipal authorities, recognise the societal yearning to achieve an orderly community. They understand that peace and tranquillity, the hallmark of an orderly community, could only be achieved if the laws and bylaws or dained for their- community ar e strictly followed.
Condominium corporations should address violations of bylaws swiftly and consistently to prevent defences of waiver or selective enforcement. Art offending owner should be warned repeatedly if necessary.10 Minor or inadvertent violations of bylaws may be resolved by peer pressure, gentle admonitions, and friendly warnings. However, more serious offences and chronic offenders may make life unbearable and unsafe and cause bitter disharmony. How should the condominium board deal with an intoxicated and inadequately clothed owner who wanders the common premises on weekends, insulting neighbours and threatening physical assault?11 What shall be done with a seriously ill owner of unsound mind who does not realise their ailing body releases a rotten smell that permeates the building,12 or with one whom it is known has recently contracted the contagious and dangerous novel coronavirus but continues to use the common facilities and amenities?
Tire aim of this contribution is to critically assess the efficacy of the sanctions provided in South African and European condominium legislation and bylaws to deal with chronic rulebreakers in condominium developments. I fust try to show that the sanctions provided for in the South African condoniiniiun (‘sectional title’) legislation13 and bylaws14 and the common law remedy based on the common-law tort of nuisance aimed at prohibiting intolerable behaviour are inefficient and ineffective to deal with excessive misbehaviour. Then I discuss the more drastic and controversial sanctions encountered in the condoniiniiun legislation of some European jurisdictions.15 This legislation provides for permanent or temporary exclusion of chronic offenders from the condoniiniiun scheme, hi the conclusion, I reflect on whether the drastic sanctions would pass constitutional muster on account of their apparent conflict with basic human rights guaranteed in the South African Constitution of 1996.