Page 64 - Q&A 2019/2020

To Court or to the Community Ombud?

Natalie Steenkamp
June 2019

“I made some minor amendments to the outside of my sectional title unit
without the consent of the Body Corporate because I wasn’t aware that I
needed to get their consent. They have now informed me that if I don’t remove
the amendments, they will take me to court. I really feel that we can discuss the
amendments as they were rather minor but the body corporate flatly refuses to
even have a discussion and I don’t have money to go fight the issue in court.
What options do I have?”

As a point of departure, it is right that a body corporate should regulate the
conduct of unit owners in a complex. However, running straight to court is not
necessarily always the most advisable, appropriate or cost-effective method of
doing this.

Due to the frequency of disputes that arise from shared ownership community Property
schemes ending in our courts the Community Schemes Ombud Service Act
(“Ombud Act”) was enacted. The Ombud Act establishes the Community
Schemes Ombud Service (“Ombud”) as a dispute resolution mechanism for
community schemes to create a more informal and cost-effective manner to
resolve typical ‘domestic’ disputes that arise from community living.

The Ombud Act defines a dispute as being one that affects the administration
of a community scheme, between persons who have a material interest in that
scheme, of which one of the parties is the association, owner or occupier, acting
individually or jointly. These disputes are then further defined into a number of
broad categories in respect of which the Ombud can make orders in respect
of namely:
1. Financial issues, for example unreasonably high contributions.
2. Behavioural issues, for example noise disturbances.
3. Scheme governance issues, for example declaring governing
provisions invalid.
4. Disputes relating to meetings and resolutions of the Body Corporate.
5. Management services, for example appointment of an executive
managing agent.
6. Physical works, for example the effect of maintenance, amendments
or repairs.
7. Other general issues, for example access to information.
In the recent High Court case of Coral Island Body Corporate v Hoge the court
held that it was inappropriate for the trustees of the sectional title scheme to
seek relief from our courts for a matter which fell within the jurisdiction of the
Ombud Act and that the trustees should rather have referred the matter to the
Ombud.

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