There are different opinions regarding the legality of fines on owners or residents for breaches of the rules.
We investigated and found that neither the Sectional Titles Act nor the prescribed rules provide for the imposition of fines or penalties on transgressors of a scheme’s rules.
But as per the opinion of a number of well known attorneys specialising in sectional title, 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.
In order for the rule 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 Body Corporate with the required resolution (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 we recommend that you get an attorney that specialises in sectional title, to draft the fining rule for you and ensure it is properly filed at the Deeds Office.
With regards to wheel clamping – it must also be clearly stated in the rules of the scheme; there must be signs all over the common property stating that this is what is going to be done for illegal parking of a vehicle and there must be an immediate resolution system in place. I.e. if one of the owners / residents urgently have to use their vehicle (example pregnant lady to go to the hospital) there must be someone available at all times to unclamp the vehicle immediately.