I often get asked questions regarding interpretation of the rules or I get asked a question regarding maintenance etc. I always then ask the PM for a copy of the plans and the rules. The problem is that I then receive rules from them that are not enforceable – So when are rules enforceable?
There are two types of Rules for a Sectional Title Scheme – Conduct Rules and Management Rules.
The Act have prescribed Rules in Annexure 1 (Management Rules) and Annexure 2 (Conduct Rules).
Most complexes amend their Conduct Rules, but most complexes don’t amend their Management Rules.
To amend Conduct Rules (and to make them enforceable) there are two things that must happen:
- A special resolution must be passed to approve the rules
- The rules must be approved by CSOS
Only then are the rules enforceable
To amend Management Rules (and to make them enforceable) there are two things that must happen:
- A unanimous resolution must be passed to approve the rules
- The rules must be approved by CSOS
Only then are the rules enforceable
This applies to all rules that are amended after 7 Oct 2016.
Before 7 Oct 2016 rules were only filed at the Deeds Office and not approved by CSOS.
So if I look at amended rules and want to determine if they are enforceable I want the following:
- The CSOS approval certificate (for rules amended after 7 Oct 2016) ;or
- The Deeds Office stamped rules (for rules amended before 7 Oct 2016)
Should there be no amended rules in order to confirm that they work on the prescribed rules of the Act I need the following:
- A conveyancer certificate stating they work on the rules from the Act; or
- Confirmation from Deeds Office that no amended rules were filed with them (before 7 Oct 2016); and
- Confirmation from CSOS that no amended rules were approved by them (after 7 Oct 2016)
And don’t get me started on House Rules! The Trustees have no authority in terms of the Act to make rules.
References from the STSM Act:
Section 10
(1) A scheme must as from the date of the establishment of the body corporate be regulated and managed, subject to the provisions of this Act, by means of rules.
(2) The rules must provide for the regulation, management, administration, use and enjoyment of sections and common property, and comprise—
- management rules, as prescribed, which rules may subject to the approval of the chief ombud be substituted, added to, amended or repealed by the developer when submitting an application for the opening of a sectional title register, to the extent prescribed by regulation, and which rules may be substituted, added to, amended or repealed by unanimous resolution of the body corporate as prescribed; and
- conduct rules, as prescribed, which rules may, subject to the approval of the chief ombud, be substituted, added to, amended or repealed by the developer when submitting an application for the opening of a sectional title register, and which rules may be substituted, added to, amended or repealed by special resolution of the body corporate, as prescribed: Provided that such conduct rules may not be irreconcilable with any prescribed management rule contemplated in paragraph (a).
(3)The management or conduct rules contemplated in subsection (2) must be reasonable and apply equally to all owners of units.
- The management or conduct rules referred to in subsection (2) take effect from the date of establishment of the body corporate in respect of the building or buildings and land concerned, and bind the body corporate and the owners of the sections and any person occupying a section.
(5) (a) If the management or conduct rules contemplated in subsection (2) are substituted, added to, amended or repealed, the developer or the body corporate must lodge with the chief ombud a notification in the prescribed form of such substitution, addition, amendment or repeal.
- The chief ombud must examine any proposed substitution, addition, amendment or repeal referred to in paragraph (a) and must not approve it for filing unless he or she is satisfied that such substitution, addition, amendment or repeal is reasonable and appropriate to the scheme.
- If the chief ombud approves the substitution, addition, amendment or repeal of rules for filing, he or she must issue a certificate to that effect.
- A substitution, addition, amendment or repeal of rules contemplated in paragraph (a) comes into operation on the date of the issuing of a certificate contemplated in paragraph (c) or the opening of the sectional title register for the scheme, whichever is the latest.
(9) Rules decided on by unanimous resolution under the repealed Sectional Titles Act, 1971, or any other provision before 1 June 1988 replacing rules contained in Schedule 1 to that Act, and at the said date not yet lodged with the registrar as contemplated in section 27(3) of that Act, lapsed on that date, and such rules are considered to have been replaced, subject to addition, amendment or repeal as contemplated in subsection (2)(a), by prescribed management rules contemplated in that subsection.
(10) (a) Unaltered rules contained in Schedule 1 to the repealed Sectional Titles Act, 1971, or any other provision and applying immediately prior to 1 June 1988 in respect of any scheme, lapsed on that date, and such rules are considered to have been replaced, subject to addition, amendment or repeal as contemplated in subsection (2)(a), by the prescribed management rules contemplated in that subsection.
(b) Unaltered rules contained in Schedule 2 to the repealed Sectional Titles Act, 1971, or any other provision and so applying in respect of any scheme, lapsed on that date, and such rules are considered to have been replaced, subject to addition, amendment or repeal as contemplated in subsection (2)(b), by the prescribed conduct rules contemplated in that subsection.
(11) Any rules other than rules referred to in subsection (10) which applied in respect of a scheme immediately prior to 1 June 1988 must, subject to such substitution, addition, amendment or repeal as contemplated in subsection (2)(a) or (b), as the case may be, remain in force after the said date, except to the extent that any such rule may be irreconcilable with any prescribed management rules contemplated in subsection (2)(a), in which case the management rules concerned applies: Provided that any such rules were as from 1 June 1988 considered to be supplemented by any rule in the prescribed management rules which is not provided for in such rules.
(12) Any rules made under the Sectional Titles Act are deemed to have been made under this Act