Written for Property Poser

After a recent break-in our Property Poser reader, who lives in a townhouse complex, was threatened with a fine by the chairman of the board of trustees, because her windows are permanently open.

He told her that open windows were a safety risk as they served as an invitation to burglars.

Our reader says the burglars did not obtain entry through an open window and that all of her windows are fitted with burglar bars. She wants to know if a fine is lawful.

Sonet Pieterse from Sonet Pieterse Attorneys & Conveyancers in Port Elizabeth says Section 35(1) of the Sectional Titles Act No 95 of 1986 stipulates that sectional title schemes are to be controlled and managed by body corporates by way of management and conduct rules.

“The act contains standard management and conduct rules, unless the developer or the body corporate substitutes these with amended ones,” says Pieterse.

According to her, the standard rules do not contain effective sanctions (for example the right to impose penalties) against owners who fail to fulfil their obligations in terms of the act or against owners or occupiers who contravene the conduct rules.

“These only contain limited sanctions, for example that an owner may not vote at a general meeting if his levy is in arrears or if he persistently breaches the conduct rules,” says Pieterse.

“This does not mean that trustees of schemes, to which the standard rules apply, do not have any powers to enforce the provisions of the act.

“They are authorised (by the act) to do all things reasonably necessary for the enforcement of the rules and for the control, management and administration of the common property. This includes the use of a court order, interdict or an action for damages against owners.”

Ed Slater from Rawson Properties Port Elizabeth says – for the sake of transparency, efficient management and harmony in a sectional title community – it is preferable to have a set of rules that gives the trustees the power to impose appropriate fines for contraventions.

“These rules can also contain a framework to determine what acts or omissions will be penalised, what the penalty will be and so on. Care must be taken not to include any arbitrary, inefficient or irrational rules.”

Slater says if the standard rules apply to the scheme in which the reader owns a unit, the trustees will not be allowed to penalise her for keeping the windows open.

“If the rules were custom made for the scheme, it would be necessary to study them in order to advise the reader on her position. It is however unlikely that these will contain a prohibition on sleeping with open windows as there would appear to be no rational basis for imposing it,” says Slater.

“If they do, it is likely that the reader will be able to contest the validity thereof on the basis that it is arbitrary, irrational and that it infringes on her ownership rights – except if it can be justified through circumstances that are specific to the scheme.”

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