NAVIGATING THE COMMUNITY SCHEME OMBUD

Most sectional title owners would have noted that since October 2016 there has been an additional levy on their monthly invoices, allocated toward the Community Scheme Ombud Service (“CSOS”).

What exactly is the purpose of this levy and when exactly does one approach the Ombud?

The creation of the Community Scheme Ombud by the enactment of the Community Scheme Ombud Service Act 9 of 2011 (the “CSOS Act”), affords a new dispute resolution mechanism for owners and persons affected by a dispute and governs other matters connected therein.

In terms of section 38(1) of the CSOS Act any person may make an application to the Community Scheme Ombud if such person is a party to or is affected materially by a dispute. The CSOS Act defines a community scheme as being any scheme or arrangement in terms of which there is a shared use of and responsibility for parts of land and buildings. This naturally includes sectional titles development schemes, share block companies, home or property owners associations, housing schemes for retired persons, and housing co-operatives.

Although, it is then apparent that owners, tenants, trustees and other members in the aforesaid schemes may approach the Ombud for relief, the CSOS Act at section 39 limits the prayers for relief that maybe sought, to the following:

1. Financial Issues – this includes, disputes pertaining to the level of levy contribution of any member, insurance disputes with the managing members, requests for the accounts of the scheme to be audited. Significantly, section 39(1)(f) empowers the Ombud to order that a tenant be required to pay rental or part thereof, directly to the scheme (and not the landlord) until a specified amount owed by the landlord to the scheme is satisfied (e.g. Arrear levies).
2. Behavioral Issues – includes disputes pertaining to a particular conduct that constitutes a nuisance.
3. Governance Issues – including disputes pertaining to the validity of Community Rules, infractions or invalidity thereof. Significantly, section 39(3)(d) empowers the Ombud to make an order pertaining to reasonableness of a set of rules or a provision therein. It is important to note that any proposed changes to the governing rules of a community scheme will need to be lodged with the office of the Ombud for authorization before same become enforceable.
4. Meetings – including an order calling for or disputing the purpose of a general meeting, or that the a motion considered was not passed on the grounds that opposition to same was unreasonable.
5. Management Services – this includes disputes pertaining to the managing agency conduct or authorization.
6. Works to Private and Common Areas – including orders requiring that a scheme carry out repairs and/or maintenance, or that a specific person carry out repairs or maintenance, or requiring the scheme to acquire certain property or assets for the use, convenience, or safety of owners/occupiers.
7. General – including disputes pertaining to the access to information or any other order proposed by the Chief Ombud.

Matters referred to the Ombud would need to be screened for validity and jurisdiction; thereafter an official is appointed to investigate the dispute.

The Ombud expects disputes to be resolved between five and 120 days, depending on the complexity of the matter and any order thereto will be enforceable in the Magistrate’s or High Court depending on the nature and quantum of same.

While the office of the Community Scheme Ombud aims to deliver a more expedient and cost-effective avenue for dispute resolution, the office is still in a somewhat fledgling stage and only time will test the efficacy of the services as a whole.

Prepared by:

Kshethra Naidoo | Associate | Corporate and Commercial

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)