The collection of levies in sectional title schemes and who the party is that should be held responsible for the payment thereof is a relevant question in today’s life.

Sectional title homeowners (those owning townhouses, complexes or flats), is charged a levy amount, usually on a monthly basis. This amount covers all complex maintenance costs, building insurance cover, general repairs and the general upkeep of a complex, the common property and units.

According to the Sectional Titles Act of 1986 (“the Act”) the Body Corporate is responsible for establishing an administrative fund that adequately meets these monthly expenses. An owner of a sectional title is liable to pay a monetary contribution towards this fund; ensuring that ample funding is available to fulfil the obligations set forth by the Body Corporate as stipulated in the Sectional Titles Act.

Every unit owner is therefore responsible for paying the levy amount, as well as any Special Levies raised by the Trustees.

An interesting question that arises is: Is a developer required to contribute to the levies?

When we refer to the Sectional Title Schemes Management Act 8 of 2011 (“STSM Act”) it is clear that the developer forms part of the Body Corporate and the STSM Act and its financial obligations are therefore also applicable to the developer.

To answer the question whether a developer can be held liable to pay a levy fee, it is important to differentiate between a situation where a unit/units is/are registered in the name of the developer, and a situation where a developer is only the holder of a right to extend a scheme.

In the event that a unit/units is/are registered in the name of the developer, the developer can be classified as an owner of a unit as stipulated in the Sectional Title Schemes Management Act, 8 of 2011, and as such the developer will be liable to pay a levy for each unit owned.

Where the developer holds the right to extend the scheme, he or she must pay any costs attributable to the part of the common property which will be used for the extension and, if the right or part of the right is ceded to a third party, the Body Corporate must issue a certificate showing that all these costs have been paid before the cession can be registered.

Once a new unit in the extension is complete, the developer has ninety days to register same and, upon registration, is held liable for the levy for that section until it is transferred to a third party. If the developer fails to register the new unit within the ninety-day period, he or she becomes liable for that payment as from the date of completion of the unit.
So yes, a Developer can be required to contribute to the levies of the Body Corporate of a scheme.

Even though everyone wishes for a peaceful and tranquil community and neighbourhood, this is not always the case as you (unfortunately) cannot choose your neighbours. Which begs the question: What legal rights do I have if my neighbour’s pets are causing a nuisance and noise which cannot be overlooked? The barking of dogs is a noise nuisance which is a subjective measure and is defined as a noise that disturbs or impairs or may disturb or impair the convenience or peace of any person.^[1]

The first step towards any problem with a neighbour is to approach them directly and to try and resolve the matter amicably, but what if this is not possible due to the neighbours hardly ever being home and therefore being unaware of the extent of the animal’s barking, howling or annoying noise? Luckily, if no compromise or agreement can be reached, further legal remedies are at your disposal.

Despite certain Body Corporates and Home Owners Associations making provision for rules and regulations on pets being kept on the properties, the following is also applicable:

a) The Environmental Conservation Act^[2] and the National Noise Control Regulations does provide guidance in these types of situations but is practically implemented at a local authority level. In Gauteng the by-laws make provision for the prohibition of noise disturbance and noise nuisance. Section 29 of the City of Tshwane Metropolitan Municipal by-laws (hereafter referred to as “the by-laws”) specifically deals with the nuisance caused by dogs.

b) Section 29(1)(a) of the by-laws confirm that no person may keep a dog if the dog creates a disturbance or a nuisance by constantly or excessively barking, howling or whirling.^[3]

c) Section 5(d) of the by-laws specify that no owner is entitled to keep more than 3 dogs or 3 cats older than 6 months on a premise zoned for special residential purposes.^[4]

The by-laws are provided but the difficulty is to implement and enforce these by-laws.

Which begs the question: How do you implement and enforce these by-laws?

1. If a situation cannot be resolved amicably, the by-laws provide for the submission of a complaint with the Municipality by calling 012 358 4656, alternatively email the complaint to: bylawenforcementcenter@tshwane.gov.za or bec@tshwane.gov.za;^[5] where after the Municipality will send an Environmental Health Practitioner who will subsequently investigate the matter. If he/she is of the opinion that the dog is causing a nuisance as defined in the by-laws, he/she may order the owner, in writing, to remove the dog from the place where the dog is being kept.

 

2. According to Section 32 of the by-laws, the Health Practitioner may order the impounding of any animal that is being kept in contravention of any part of the by-laws. A neighbour who contravenes or fails to comply with the Environmental Conservation Act and the National Noise Control Regulations can face penalties not exceeding R20 000.00 or imprisonment of a period not exceeding 2 years.^[6]

 

3. Alternatively, if the Municipality do not investigate or provide a finding, or the neighbours persist with the noise nuisance, the complainant can approach a court of law for further relief. If the persistence of the noise is considered unlawful or threatens to be unlawful, an application for an interdict can be made, preventing the neighbour from further causing or allowing such a nuisance. This will need to be considered by the courts by taking into account every situation and the facts and circumstances surrounding it.

Although the law makes provision for an owner to protect his/her right to the undisturbed use and enjoyment of his/her property, an owner must be cautious of bringing excessive applications to our already crowded courts. The courts will consider each case on its own merits, to determine whether a reasonable person would consider the nuisance to be unlawful. If the court is of the opinion that the situation could have been resolved amicably or with alternative measures, the complainant can find himself/herself incurring unnecessary costs.

^[1]Laskey and Another v Showzone CC and Others (5988/06) [2006] ZAWCHC 50; [2007] 4 All SA 1162 (C) (30 October 2006)

^[2] Act No. 73 of 1989

^[3] Government Gazette 242 (4 October 2017)

^[4] Government Gazette 242 (4 October 2017)

^[5] www.tshwane.gov.za/sites/business/Bylaws

^[6] Noise Control Regulations Gauteng