Johannesburg South Africa Sectional Title Law

Gretchen18
Level 1
Johannesburg, South Africa

Johannesburg South Africa Sectional Title Law

Hi all - I am a fairly new host and have recently got an email from a neighbor who has reported to body corporate that my property is listed on AirBnb. Has anyone has this experience and have legal advice? My body corporate rules do not specifically prohibit this so I didn't think there is a law which prevents short term leasing. Any help will be appreciated. 

26 Replies 26

Good day Kas,

 

i've only come across this conversation 2 years later, hope i'm not too late. I'm interested in knowing how you tackled the AGM meeting. We're facing the same opposition in a sectional title and an AGM is scheduled for end on this month.

 

Thanks

I saw the letter, thanks

Kenneth277
Level 1
Middelburg, South Africa

Hi, could you share the letter with me also - I have a flat in the Cape town city Bowl area and have been blocked to let it for over 3 years now.... indluinn at gmai 

Shemma
Maile9
Level 1
Lethabong, South Africa

Hi Kas. 

 

I just received a letter from my body corp to cause running a businesss from my unit. please share the said letter with me? **

 

**[E-mail address & phone number hidden due to safety reasons - Community Center Guidelines]

 

 

Sue907
Level 2
Umhlanga, South Africa

Hi Kas thanks for this info, I would love to read your letter if you would be willing to send it to me?  My body corp has called for a special meeting on 1 Nov......

My email address is **

regards and all the best

**[E-mail address & phone number hidden due to safety reasons - Community Center Guidelines]

Penny232
Level 2
Geneva, Switzerland

Dear Kas, we are also faced with the problem. I would like to know how you managed to resolve this issue 

How did you do it😢

Kas2
Level 2
South Africa

I have been contacted by several members regarding BC´s that are trying to stop short term rentals in gated communities under the pretext of a so called increased "security risk" For the benefit of those of you that are experiencing this problem, I will post here the contents of my motivation used to block such an attempt. I am however also aware of another member, "Ewald" who has not been so lucky and whom I believe now have a court order against him. I believe it is time that AirBnB as an organisation, step up to the plate and help to sort this mess out. Anyway, here´s my letter:

 

It is important for me to advise yourselves and the members of the BC officially with this e-mail that I object to the amendment to clause 1 and 5, and the addition of clause 11 in the strongest possible terms.

 

With regard to clause 1 and 5 I wish to state that the presence of pets in the complex, especially cats is a nuisance, as they freely roam the complex, often setting off my alarm system. They have also in the past, entered my apartment and messed up curtains and furniture and food put out to thaw. With the existing rule, the pet population should NOT grow but eventually we should be completely pet free as intended in the original rule that was in place in 2000 when I bought my unit.

 

With regard to clause 11 I wish to state that this change would constitute a serious infringement on my proprietary rights to rent out my property for residential purposes as and when I want. This opinion is endorsed by the attached two opinion pieces on the procedure of changing conduct rules and secondly with the attempt to ban short term letting by changing the conduct rules. Both pieces emanate from Paddocks, arguably the biggest experts in sectional title law in South Africa.

 

If this amendment is forced through with a majority vote despite my objection thereto, I will take it on judicial review before the court and hold the BC responsible inter alia, for legal costs and consultation fees incurred.

 

I have already approached Paddocks, who I am sure you are familiar with, in order to obtain a personal quote and advice in this regard.

 

Unless I receive written confirmation within 7 days that these proposed changes will be abandoned, I will go ahead and appoint Paddocks to act on my behalf.

I have also attached the following;

Amending scheme rules step by step
 29/09/2010  Paddocks  Paddocks Press Newsletter  2 Comments
By Jennifer Paddock
There are two types of rules prescribed under the regulations to the Sectional
Titles Act, 1986 (the Act) – management and conduct rules. These rules are
generally applicable to all sectional title schemes, but do not cater for the
peculiarities of every scheme and therefore the Act makes provision for their
amendment. Many developers amend the prescribed rules on opening a
scheme’s register and many bodies corporate 􀃒nd it necessary to amend the
rules at a later date. This article sets out, step by step, the correct legal procedure to follow
when amending scheme rules by taking a resolution at a meeting.
1. The amendment/proposed resolution must be drafted
This may either entail drafting a new rule or changing the wording of an existing rule. Things to
remember:
• In terms of section 35(3) of the Act, all rules must be reasonable and must apply equally to all
owners of units put to substantially the same purpose.
• A conduct rule may not con􀃓ict with a prescribed management rule or a provision of the Act,
and a management rule may not con􀃓ict with a provision of the Act.
• A rule designed to confer exclusive use rights must have an allocation schedule and scale plan
attached.
• Make sure that the rule is very clearly drafted. It must be an unambiguous statement of a
speci􀃒ed person’s right or obligation to do or not to do a particular thing.
• The requirement that rules must be reasonable means you need to ask: “Is this provision
sensible in all cases?” So, for example, do not say: “A person must not make any noise…” because
babies will cry and people will play pianos. Rather say: “A person must not make any noise that
unreasonably disturbs an occupant of any section…”.
• You may want to employ the services of an attorney who is well versed in sectional title law to
assist in drafting the wording of the amendment or proposed resolution.
2. Check if the written consent of any owner is required
• Does the rule adversely a􀃗ect any owner’s voting rights or increase his or her liability for
contributions (levies)?
• Does the rule adversely a􀃗ect any owner’s proprietary rights?
• If either of these situations seems possible, you may need that
person’s written consent and may want to get speci􀃒c advice from an
attorney experienced in sectional title law.
3. Send out notice of the meeting at which the proposed
resolution will be considered
The notice of the meeting must specify the proposed resolution and
must be sent to owners and bondholders at least thirty days prior to the
meeting date.
4. At the meeting, check that the required quorum is present
The quorum requirement will di􀃗er depending on whether the
proposed amendment is to the management or conduct rules.
Amendment of the management rules requires a unanimous resolution. For a unanimous
resolution to be taken at a meeting, a quorum of 80% of owners in number (i.e. 80% of the actual
number of owners in the scheme) and value (i.e. owners representing 80% of the participation
quotas) must be present or represented.
Amendment of the conduct rules requires a special resolution. For a special resolution to be taken
at a meeting, only an ordinary quorum must be present (i.e. there is no raised quorum
requirement as there is for the taking of a unanimous resolution). The ordinary quorum
requirement di􀃗ers depending on the size of the scheme:
• If there are ten or fewer units, the number of owners holding at least 50% of the votes forms a
quorum;
• If there are 11 – 49 units, the number of owners holding at least 35% of the votes forms a
quorum, and
• If there are 50 or more units, the number of owners holding at least 20% of the votes forms a
quorum.
5. The required number of persons must vote in favour of the resolution
Again, this will depend on whether a unanimous or special resolution is being taken.
For a unanimous resolution to be passed, every person present or represented at the meeting
must vote in favour of the resolution, with abstentions being counted as votes in favour. Even
one vote against the resolution e􀃗ectively defeats it.

For a special resolution to be passed, 75% in number and value of those present or represented
at the meeting must vote in favour of it. Abstentions are not counted as votes in favour, and votes
against do not defeat the resolution.
6. The outcome of the vote must be minuted
It is important for the outcome of the vote to be minuted, as the minutes of this meeting will
serve as a permanent record in the body corporate’s minute book of the decision made.
7. The Form V must be 􀃒lled out and the amended rule(s) initialed
If the resolution is successfully passed, two trustees must then 􀃒ll out a “Form V”, which is a form
prescribed under the regulations to the Act and required by the Deeds O􀃕ce administration, to
􀃒le the changes in the scheme’s 􀃒le at the Deeds Registry. You can obtain a copy of the latest
Form V from the library section of our Sectional Titles Online website (www.sto.co.za). The
trustees must also initial each page of the amended rule(s).
8. The amended rule(s) must be handed in to the Deeds O􀃕ce for 􀃒ling in the scheme’s
􀃒le
In terms of section 35(5)(c) of the Act, the amendment only becomes e􀃗ective on the date of 􀃒ling
in the scheme’s 􀃒le held at the Deeds O􀃕ce. Therefore, the completed Form V and the initialed
rule(s) must be handed in to the Deeds O􀃕ce for 􀃒ling in the scheme’s 􀃒le. It is a good idea to
take a copy of the Form V and initialed rules when you hand the originals in for 􀃒ling so that you
can get your copy date-stamped as proof of the date on which the amendment was received by
the Deeds O􀃕ce, and as proof of what should now be in the scheme’s 􀃒le.
Article reference: Paddocks Press: Volume 5, Issue 9, Page 5
Jennifer Paddock is a sectional title expert. Click here to learn more about the benchmark course
in sectional title scheme management, presented by Paddocks in conjunction this the University
of Cape Town.

 

and 

 

Short-term letting in sectional title schemes
By Dr Carryn Melissa Durham
Many people own property in sectional title schemes for investment purposes, and they let their units
out to tenants for rental income. With accommodation reservation websites such as Booking.com and
Airbnb.com, it has never been easier to find short-term tenants. In schemes that are located in holiday
destination hotspots, city centre condominiums and seaside apartments, the landlord can collect a
higher rental fee per night on a short-term basis compared to longer lease agreements.
Many bodies corporate complain that short-term tenants can be trouble-makers who breach the
conduct rules, jeopardise the reputation, security and property value of the sectional title scheme.
The trustees are tasked with the duty to control, manage, and administer the common property, and
do all things reasonably necessary for the enforcement of the rules of the scheme. However, the
trustees should not unreasonably restrict or regulate the manner in which owners use their section,
and should not limit the proprietary rights of investment owners to obtain the highest rental return for
their property, in the rules.
An investment owner could be adversely affected where the scheme rules restricts short-term letting
of the sections in a seaside scheme. This would limit the rental pool of tenants that the owner could let
the unit to, and make it difficult for owners to obtain the maximum rental for their section over the
summer holidays.
The concept “short-term letting” is not defined in the Sectional Titles Act 95 of 1986 (“the STA”) or the
Sectional Titles Schemes Management Act 8 of 2011 (“the STSMA”). Various provisions of the
STSMA, Prescribed Management Rules (“PMRs”), and Prescribed Conduct Rules (“PCRs”) refer to
and bind owners and occupiers. “Occupiers” is also not a defined term, but would include short-term
tenants.
Ultimately, PMR 3(2) states that a member must take all reasonable steps to ensure compliance with
the conduct rules by any tenant or other occupant of any section or exclusive use area, including the
member’s employees, tenants, guests, visitors and family members. It is the duty of an owner to
ensure that his or her tenants and other occupiers, including employees, guests and their family
members, comply with the rules. This is a partial re-statement of section 10(4) of the STSMA, which
provides that a scheme’s rules “bind the body corporate and the owners of the sections and any
person occupying a section“. PCR 7(4) states that: “The owner or occupier of a section is obliged to
comply with these conduct rules, notwithstanding any provision to the contrary contained in any lease
or any other grant of rights of occupancy.”
The STSMA gives the owners certain duties when letting their unit, for example, section 13(1)(f) of the
STSMA imposes an obligation on the owner of a unit to notify the body corporate when they let out
their units. Furthermore, the Rental Housing Act 50 of 1999 states that a copy of the scheme’s
conduct rules must be attached as an annexure to the lease. Furthermore, the landlord must ensure
that the tenant receives a set of these rules.
A conduct rule could be adopted, that states that owners are entitled to continue letting their units on
a short-term basis, subject to certain conditions, for example:
The owner must keep proper and accurate records of the full identities, addresses and contact
details of all tenants leasing their units.
The owner must ensure that a copy of the scheme’s conduct rules is made available to each and
every tenant that lets their units.
The owner must ensure that each tenant sign an undertaking to comply with the scheme’s conduct
rules.
The scheme rules should address the specific actions or behaviour of the short-term tenants, rather
than to target the investment owners with blanket bans or overly restrictive rules. If the only problem
the trustees see, in this situation, is a threat to scheme security, I suggest that they motivate the
making of a new conduct rule that addresses access control and security. The body corporate should
identify the undesirable activities that result from the short-term letting, and establish whether this
high-turnover occupancy process unreasonably interferes with the use and enjoyment of the common
property or sections by other owners or occupiers, and whether the activity causes a nuisance.
If there is consistent, persistent and serious nuisance due to the holiday letting, the body corporate
should adopt a penalty rule. The trustees can then fine, and otherwise act against, an owner on
account of the actions of his or her short-term tenant, when they act in a manner alleged to be a
breach of the rules.
If you have experienced any problems with short-term letting in your scheme, and require our
assistance with drafting conduct rules, please contact 

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David2786
Level 2
Johannesburg, South Africa

thank you

Hi David,

 

Did you win on this? Currently trying to discuss this with our Body Corporate as they’ve declared my Johannesburg listing a business.

 

Thanks, Jenna

Penny232
Level 2
Geneva, Switzerland

May I ask you to email me the letter as it's unreadable here? My **

 

**[E-mail address & phone number hidden due to safety reasons - Community Center Guidelines]

Anna-Lize0
Level 2
Pretoria, South Africa

Having the same issue with our Body Corporate, also the fact that Airbnb is a relatively new term people don’t understand what it is, would love any assistance or feedback from how other have conquered the problem.

Hi what trustees do if anything if there is a unit owner that fights with other owners.