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Monday Jun 02, 2014

Bureaucratic nightmare for property owner in duet scheme

Since she bought her home 19 years ago, 72-year-old Mrs H has been living a nightmare. If she could sell her property to rid herself of her neighbour, she would. But she can't.

Mrs H owns a property in a 'duet' scheme, a sectional title development that consists of just two dwellings. There are said to be about 10 000 duet schemes in Pretoria alone, where she lives.

Typically, developers create duets on land that cannot be subdivided; instead, they create a sectional title scheme with two sections, which may be separate dwellings or semidetached. The scheme is governed by the Sectional Titles Act and should be run accordingly. In other words, management and conduct rules apply, and trustees manage the scheme and ensure that owners adhere to the conduct rules.

But if there are only two owners, this gives rise to obvious problems. Practically, it's not workable, because, when there are disagreements, there's no one to cast the deciding vote.

For example, how do you deal with an owner who allows a tenant to run a second-hand car dealership from home, or who erects illegal structures on the common property - for his exclusive use?

These are the very problems with which Mrs H has had to contend over the past decade. Blocked sewerage pipes, refusal of access to communal property and threats shouted over the wall, aside.

In an ordinary sectional title scheme, problems such as these are neither uncommon nor easy to resolve, but the body corporate would consist of more than two members. There may also be a managing agent in the mix to enforce the Act. But in duets, very often owners are either ignorant of the Act or ignore it altogether.

'People living in these schemes very often do not even realise that their home falls under the Sectional Titles Act,' Marina Constas, an attorney who specialises in sectional title, says.

'Duets cause considerable headaches for those living in them,' she says.

Mrs H has appealed to the Tshwane Municipality and the courts in an attempt to get her co-owner to comply with the law. But when she got no relief from the courts, she turned to the Public Protector's office.

Mrs H wants the municipality to deal with her co-owner for building a car port, patio and toolshed without approved plans, in contravention of the National Building Regulations, and without her consent, which is legally required, given that she is an owner with a 50 percent undivided share in the common property.

'He has effectively unilaterally increased his participation quota and expects me to just accept it. But I will not, because this prejudices me in terms of my voting rights as an owner in a sectional title scheme,' she says.

And as long as there are illegal structures on the common property, she can't sell her unit.

'Furthermore, if the sectional plans, held by the Surveyor General, are not a true reflection of the property on the ground, the sale is not negotiable in terms of the Consumer Protection Act.'

She says that when the matter was eventually heard in the municipal court, in April 2012, the owner pleaded guilty to having built illegal structures and to ignorance of the law. He was found guilty as charged, fined R1 500 and 'cautioned and discharged', Mrs H says. But he was not explicitly instructed to demolish the illegal extensions.

When Mrs H appealed to the chief magistrate to reopen the case, she was told that the matter had been deliberated on.

So she went back to the Tshwane Municipality and asked the local authority to enforce the law relating to illegal buildings. She was advised to appoint an advocate and to approach the high court for relief.

Considering the high cost of such an action, Mrs H went to the Public Protector's office.

'I had nowhere else to turn, particularly since there is not yet an ombudsman dealing with sectional title disputes,' she says (see 'Community schemes ombud to be appointed 'soon'', left).

'I asked the Public Protector to investigate Tshwane Municipality for not fulfilling its mandate to take action in respect of illegal buildings. The resultant inquiry led to my co-owner being summonsed for a second time to the municipal court. Another appearance was scheduled to allow for him to be accompanied by his advocate. Then his advocate asked for a postponement, to make representation to the public prosecutor. He was questioning whether his client can be tried again for the same misdemeanour.'

Mrs H says the public prosecutor has conceded that the accused can't be charged again for building without plans and breaking regulations, but he can be prosecuted by the municipality for not heeding a municipal contravention notice to demolish the illegal structures or submit plans to the council for approval - to legalise the structures.

After seven postponements, the case is going to court in July. For Mrs H, this is no small victory. It has been a four-year-long fight.

'I have been prevented from making a decision about the future of my investment while he has been allowed to break the law - and get out of paying rates on the additional illegal structures.

'In 2004, an ombudsman was promised - 10 years have passed and we are still waiting.'

  • Community schemes ombud to be appointed soon

    The appointment of the long-awaited ombud for community schemes is imminent. Interviews for the chief ombud took place on April 24, and an announcement will be made soon, Xolani Xundu, the chief director of communication services at the Department of Human Settlements, says. A chief financial officer has been appointed, Xundu says.

    'Once the chief ombud has been appointed, staffing and operationalisation of the entity will start. This will be followed by the procurement of office space to make the office fully functional,' he says.

    The chief ombud will provide a dispute resolution mechanism for people living in communal schemes and the administrators of these schemes.

    The chief ombud's powers will extend beyond sectional title schemes to cover shareblock schemes, homeowners' associations, group and housing cluster schemes, and retirement housing schemes.

    Marina Constas, an attorney who specialises in sectional title law, says the ombud will have the discretion either to instruct parties to mediate, or to refer a matter to an arbitral tribunal. The decision of the adjudicator in this tribunal hearing would be appealable.

    The Community Schemes Ombud Services Act was assented to in 2011. It is unacceptable that the office of the ombud is still not operational, Stevens Mokgalapa, an MP and a member of the portfolio committee for human settlements, says.

    'The ombud is not yet functioning because of operational issues, including finding a suitable ombudsman, as well as funding and the appointment of staff.

    'The committee has raised its concerns in this regard and has mandated the board to move with speed to finalise the operation of this important institution,' he says.

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