SECTIONAL TITLE SCHEME ACT and COMMUNITY SCHEMES OMBUD SERVICE
1. PURPOSE OF THE SECTIONAL TITLES SCHEME MANAGEMENT ACT
1.1 The STA now deals exclusively with the conveyancing side of sectional schemes – i.e. registration of schemes; subdivision of units; extensions of schemes etc.
1.2 The STSMA:
1.2.1 Deals exclusively with the management of Sectional Title Schemes
1.2.2 Creates an office for a Sectional Scheme Ombudsman
1.2.3 Allows disputes to be determined by the Ombudsman instead of through Arbitration
1.2.4 Allows BC’s to recover arrear levies (both special and ordinary) via the Ombudsman instead of Court action
1.2.5 Allows a BC to recover ordinary and special levies pro rata from a new owner – in the past the person who was the registered owner of a unit at the time a special levy was imposed was liable END OF STORY
1.2.6 Special/Unanimous resolutions which affect owners’ rights adversely:
220.127.116.11 If any owner feels that his/her rights are adversely affected due to a special resolution dealing with levies, his/her prior written consent must be obtained first.
18.104.22.168 The Act does not state what happens if the consent cannot be obtained or within how much time. One can only imagine that if such consent is not given then that is the end of it OR a dispute has to be declared and it is taken further.
22.214.171.124 Any unanimous resolution which will have an unfairly adverse effect on an owner cannot be implemented unless that member consents to the decision within seven days from the resolution.
126.96.36.199 In THIS instance the Act states that if this results in a dispute between an owner and a BC it may be referred to the Ombud.
1.2.7 BC’s must now create a reserve fund for future maintenance and repairs whereby 25% of annual levies must remain in reserve.
1.2.8 Any changes to Management or Conduct Rules are lodged with the Ombudsman and no longer with the Registrar of Deeds.
1.3 We now also have the COMMUNITY SCHEMES OMBUD SERVICES ACT which regulates the Ombud’s functions and powers:
188.8.131.52 The Act requires every Community Scheme (which includes ST’s; HOA’s; Share Block Schemes; Housing Schemes for Retired Persons – ANY SCHEME OR ARRANGEMENT IN TERMS OF WHICH THERE IS SHARED USE OF AND RESPONSIBILITY FOR LAND) to collect a maximum of R40 per month (depends on whether and how much normal levies are payable per month) from each unit owner to help fund this office;
184.108.40.206 It will serve to (amongst other things) deal with any and all disputes between owners or tenants and an association (being the BC; trustees or managing agent – i.e. whoever is responsible for the administration of the Scheme (In the case of ST’s no more forced arbitration as per the Old Management Rule 71);
220.127.116.11 Associations may now also apply to the Ombudsman to collect arrear levies;
18.104.22.168 When disputes are referred, the Ombud will first try the route of conciliation and if that does not work THEN it will refer it to adjudication. The adjudicator will be appointed by the Ombud.
22.214.171.124 Legal representation will not be a given – it will depend on the nature of the dispute and general all parties must agree but the Adjudicator may make a final decision in this regard.
1.3 POWERS OF ADJUDICATORS
1.3.1 To decide about any financial issues/disputes (such as accuracy of levy impositions;
1.3.2 To order a TENANT to pay rental to the association directly without any set off because of a dispute between it and the landlord and that this is seen as rental which the landlord cannot then try to sue for;
1.3.3 To deal with behavioral issues / removing illegal attachments to units/common property including pesky pets, by ordering specified action to remedy a situation or the removal of pesky pets!;
1.3.4 To overrule any decisions at any meetings including those obtained by way of special or unanimous resolution of the Adjudicator feels that it unreasonably interferes with the right of an owner OR OCCUPIER;
1.3.5 To force an association to appoint a new managing agent / fire a MA / force an MA to do what it is supposed to do;
1.3.6 To grant exclusive use over common property if the association has refused;
1.3.7 Any other order proposed by the Ombud.
1.4.1 All disputes are referred by way of prescribed application – visit http://www.csos.org.za/
1.4.2 All disputes must be lodged within 60 days of the dispute occurring;
1.4.3 All adjudication awards have the effect of a court order and if not carried out, the complainant may take the award to court to have it registered as such by the clerk of the court;
1.4.4 Any party unhappy with an award may appeal it to the High Court within 30 days of the order and the affected person may apply to the High Court to stay the order pending the Appeal – so this is not an automatic consequence.
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