“It is of course quite legal for the standard conduct rules to be rewritten or expanded to create a specific framework of expected behaviour for a particular scheme, or to enable the body corporate to impose fines when the rules are broken," notes Schaefer.
“However, the new rules must be compliant with any relevant legislation - such as the Sectional Titles Management Act, the Companies Act and the Consumer Protection Act – and of course with the Constitution, which is the highest law of the land. This is why it is most advisable for trustees and directors to seek the assistance of a specialist attorney and their managing agents when attempting to revise or modernise their conduct rules.”
Speaking following a recent statement by the Community Housing Schemes Ombud Service (CSOS) concerning potential reasons for draft conduct rules to be rejected, he explains that trustees and directors cannot simply make up new rules by themselves.
“Any changes also need to be approved by the owners in the scheme, and then approved and registered by the CSOS, or they cannot be applied or enforced. Indeed, any rules that were made before October 2016 and have not been registered with the CSOS since then could be a problem to enforce.”
Schaefer says that in most cases, the proposed changes to conduct rules concern issues like parking, noise and the keeping of pets, which are the most common causes of disharmony in community housing schemes. Recently, many schemes have also had to introduce new rules to ensure that they are compliant with the Protection of Personal Information Act.
“But occasionally, we see trustees or directors trying to use their positions of authority to make changes or introduce new rules that only serve a personal preference (such as “no shorts to be worn on the common property”) or are perhaps vindictive against specific residents they don’t personally like. And sometimes we see groups of owners pushing for changes that they may believe would benefit their scheme but would actually discriminate against other residents or employees (such as “no children allowed”) and would thus definitely be in contravention of the Constitution.”
The CSOS statement gives other examples of unconstitutional draft rules it would reject as follows:
“From the above,” says Schaefer, “it is clear that CSOS is not just going to rubber-stamp proposed new conduct rules for a community housing scheme. These are going to be carefully checked and either rejected or returned for redrafting if they contravene any legislation.
“Consequently, trustees and directors need to answer the following important questions before drafting any new rules and attempting to get them approved and registered: