The inefficiency of sanctions in terms of South African legislation, bylaws, and case law regulating the condominium community

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The Sectional Titles Schemes Management Act 8 of 2011 (STSMA) and related Regulations of October 7,2016,16 provide that an owner must not use their section (or unit/apartment) or the common property, or permit it to be used, in a way that may cause a nuisance to other residents. We shall see that the owners corporation is entitled to enforce this obligation in the South African Magistrates Court or the High Court depending on the value of the matter in dispute, and most recently also by applying to the newly established dispute resolution ombud sendee for relief.17

South African bylaws

The prescribed bylaws for sectional title schemes contain a few sanctions for non-compliance. Tire first is the suspension of the vote of an owner who persists in the breach of any prescribed conduct rules notwithstanding written warning by the board or the managing agent of the scheme. The offender is not entitled to vote for ordinary resolutions (requiring a 50 percent majority) at a general meeting after a court or an adjudicator has ordered the offender to refrain from breaching such rales.18 However, the offender is still entitled to attend and speak at general meetings and to vote for special (requiring a majority of at least 75 percent in number and value) and unanimous resolutions. This sanction does not deter these ralebreakers since general meetings are held only infrequently and the person against whom the sanction is directed might only rarely attend.19

Another sanction encountered in the prescribed bylaws is that an owner who breaches a conduct rale will be liable to pay for the legal costs incurred by the corporation in connection with the enforcement of rales.20 Although this might have some deterrent effect, the payment of compensation to the management body might not deter headstrong ralebreakers from disrupting harmony in a condominium conununity. The same can be said of the power of the corporation to introduce fines in the bylaws for non-compliance. Interestingly, the Portugirese (but not the South African) statute allows the general meeting to fix penalties tor-non-compliance with statutory provisions, as well as resolutions of the general meeting and decisions of the property manager.21 This is the only European jurisdiction that empowers the general meeting or the manager to charge an offender directly with a fine.

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