Overturning an unreasonable refusal of consent to proposed sectional title use change
If the sectional plan specifies that a section or exclusive use area is for a particular purpose and the owner wants to use it for a different purpose, in terms of section 13(1)(g) of the Sectional Titles Schemes Management Act, 2011, he or she is
entitled to ask other members of the body corporate for their written consents to the use change.
If any other sectional owner refuses consent and the affected owner considers that the refusal is unfairly prejudicial, unjust or inequitable, she or he can within 6 weeks of the date of the refusal, apply to the CSOS for relief.
This type of application can only be made in the sectional title context.
There are any number of reasons why a sectional owner may want to change permission to use a section for a purpose other than that for which it is designated on the scheme’s registered sectional plan. Typically the owner wants to use the section for a higher-value purpose, such as using a garage or balcony as a bedroom.
An example of the type of order the CSOS could give is:
1. The refusal by Themba Thladi to consent to James Nguni’s request for consent to use section 53 Blaauberg Heights as a bedroom is unfairly prejudicial and inequitable to Mr. Nguni.
2. For the purposes of section 13 of the Sectional Titles Schemes Management Act, 2011 Themba Tladi is considered to have given his consent to the said request.
In terms of section 41 of the CSOS Act:
(1) An application for an order declaring any decision of an association or an executive committee to be void, may not be made later than 60 days after such a decision has been taken.
(2) An ombud may, on good cause shown, condone the late submission of an application contemplated in subsection (1).
In calculating the number of days that has passed since the decision, you must exclude the date on which the decision was made. If the 60 day period expires on a Sunday or public holiday, the period is extended so that it expires on the next working day.
An example of the type of “good cause” required to allow an ombud to condone the late submission of an application could, for example, include a situation where:
- the trustees of a sectional title scheme failed to distribute the minutes of the meeting as required under the prescribed management rules and the applicant therefore did not get the notice he or she was supposed to get that the resolution had been taken, or
- some person took steps that prevented the applicant coming to know of the decision that he or she now seeks to overturn.
If you would like to see the whole of the Community Schemes Ombud Service Act, 9 of 2011, including the full text of chapter 3 that covers applications, you can access this from Paddocks’ resource library.
Do you have concerns about your matter, need assistance completing your application, or want a sectional title Consultant to review your application before submission? Have a look at the Paddocks’ Consulting page.
For general help on the CSOS, including the special meanings of the words and phrases “association”, “common area”, “dispute”, “executive committee”, “owner”, and “scheme governance documentation” see the CSOS Information page.
Needing other assistance? Have a look at our Paddocks assistance page, which includes the helpful application guide explanation, for more information.
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