Can the body corporate of a sectional title scheme, through its trustees or managing agent impose fines on owners and residents for breaches of the rules?
Neither the Sectional Titles Act nor the prescribed rules (the governing legislation) provide for the imposition of fines or penalties on apparent transgressors of a scheme’s rules.
So the default position is ‘No’!
If you’ve received a fine from the trustees or the managing agent and your scheme’s rules don’t provide for fining – the fine may well be unenforceable.
It is possible for a body corporate to impose legally enforceable fines if the body corporate has properly adopted a carefully drafted rule providing for fining owners and residents.
However, in order to be enforceable this rule must be:
1) reasonable, and
2) take into account the principles of natural justice, especially the principle ‘Let both sides be heard’, which requires that a hearing be called to give the apparent transgressor an opportunity to state his case before being found guilty and a fine being issued.
If, after the hearing, the trustees find the person to be guilty of breaching the rules they can impose a reasonable fine.
It is important to note that for a fining rule to be enforceable it must be carefully drafted, passed by the required consensus level (special resolution for a conduct rule, unanimous resolution for a management rule) and it must be filed at the Deeds Office.
So if your body corporate wants to be able to impose fines I recommend that you get an attorney, well versed in sectional title, to draft the fining rule for you and ensure it is properly filed at the Deeds Office
Jennifer Paddock – Paddocks Blog – http://www.paddocks.co.za/paddocks-press-newsletter/555-paddocks-press-june-2013