The long-awaited CommunitySchemes OmbudService (CSOS) has been established.
People who live in homeowners’ associations, sectional titles, share block schemes and other forms of “community scheme” often find themselves in conflict, either with their neighbours or with the people who run their scheme.
They will now be able to bring their disputes to an independent body for resolution at low cost.
“The CSOS has jurisdiction to conciliate and adjudicate a wide range of disputes that arise in the administration of any sectional title scheme,” said specialist sectional title lawyer Professor Graham Paddock of Paddocks, Rondebosch.
“The CSOS also has a mandate to educate people on how each type of scheme should operate, in accordance with the relevant laws and the scheme’s governance documentation.
“The CSOS will be funded by scheme levies and application fees collected from January 2017.
“There is an exemption for owners whose scheme levies are less than R500, and then a sliding scale from R2 to R40 a month (the maximum) for those whose levies are higher. The application fees are R50 for conciliation and R100 for adjudication,” Professor Paddock said.
When you ask the CSOS to mediate, you will have to include details of the dispute and the other people or bodies involved.
“One of the parties to the dispute must be the scheme’s management association (such as a sectional title body corporate or a homeowners’ association), an owner or an occupier in the scheme.
“Schemes can, for example, approach the CSOS to confirm the amount of an owner’s outstanding contributions, and the CSOS order can be made an order of court so that enforcement procedures can commence without the delays and costs normally associated with court procedures,” Professor Paddock said.
On the other hand, an owner could approach the CSOS for an order confirming that their contributions have been incorrectly calculated, and adjusting the contribution to a correct or reasonable amount.
“Owners and tenants in complexes who have a problem with some aspect of the scheme’s administration can take them to the CSOS for conciliation or adjudication, but the CSOS staff will want to be satisfied that the applicant has communicated with the other parties to the dispute and made efforts to find a solution.
“Because they need to remain entirely impartial in any dispute, the CSOS staff do not give advice as to the law or as an applicant’s prospects of success, but they do give information about the CSOS processes and forms,” Professor Paddock said.
After making sure that the issues are within its jurisdiction, CSOS will send the application to the other affected parties and invite them to make submissions.
When the submissions are received, the CSOS will give the applicant notice, allowing them to inspect them and respond. If the exchange of information does not result in a settlement of the issues, the CSOS will decide to refer them to conciliation or adjudication.
The conciliation process involves the CSOS assisting the parties to understand their issues and explore mutually acceptable settlement options.
Trained CSOS conciliators will work with the parties to achieve a mutually acceptable agreement, but will not provide legal advice or make judgements about who is right, who is wrong or what the outcome of the disputes should be.
“If the parties are able to agree on a settlement, that will be the end of the matter. Wherever possible, the CSOS staff will promote the use of their conciliation service which allows the parties to play a meaningful role in deciding on a solution to the issues. CSOS conciliation is similar to mediation,” Professor Paddock explained.
If conciliation is not appropriate or not successful, the CSOS will refer the disputes for adjudication.
This is a more formal process in which a trained adjudicator will evaluate the legal rights and obligations and settle the dispute by making a binding order which will include orders applied for if the applicant is legally entitled to them.
The CSOS has the power to hear disputes that involve any amount of money and a wide range of scheme management disputes.
Its adjudicators can give the types of orders listed in the CSOS Act – these cover the financial, behavioural, scheme governance, general and other disputes that usually arise in community schemes.
A behavioural dispute could arise when a person uses their property to cause a nuisance, such as excessive noise that interferes with another occupier’s ability to enjoy their property. An example of a scheme governance dispute is when an owner does not believe that a particular scheme rule or other governance provision is valid.
There is a CSOS office at 8th Floor, Constitution House, Adderley Street, Cape Town.
The ombud for the Western and Eastern Cape is Maletsatsi Maceba-Wotini.
Email firstname.lastname@example.org to lodge a complaint or call 087 805 0226 for details.
Paddocks has been retained by the CSOS to train its staff on the CSOS Act and the new Sectional Titles Schemes Management Act. Paddocks also offers two new courses to the public – a Sectional Title Scheme Management Bridging short course and the UCT Scheme Manager – Sectional Title short course (presented in conjunctionUCT).
A further Paddocks short course on CSOS Applications, Conciliation and Adjudication will be available in 2017.