Where a person with a material interest in any community scheme believes that a resolution taken by members or the executive committee unreasonably interferes with his rights or those of a group of owners, she or he can apply to the CSOS to have it set aside.
In addition, in a sectional title scheme, any owner can apply to the CSOS to have a unanimous resolution declared ineffective on the grounds that it affects them negatively and unfairly.
In terms of section 39 (4) (e) of the CSOS Act, an application may be for:
“an order declaring that a particular resolution passed at a meeting is void on the ground that it unreasonably interferes with the rights of an individual owner or occupier or the rights of a group of owners or occupiers”
In the context of sectional title schemes, section 6(8) of the Sectional Titles Schemes Management Act provides that:
“Where the unanimous resolution would have an unfairly adverse effect on any member, the resolution is not effective unless that member consents in writing within seven days from the date of the resolution.”
Examples of issues
There are any number of factors that might make a person consider that a resolution is unfair to them or interferes with their rights.
In the sectional title context, an example is if the body corporate decides to build a swimming pool on common property very close to an owner’s section, so that they fear the noise of people using the pool will disturb them in their home.
In a home owners association, the owner of an individual property might object to a resolution taken by the scheme executive to make a rule that she or he considers interferes with existing rights.
Example of order
An example of the type of order the CSOS could give is:
The special resolution approving the installation of a swimming pool passed at at the general meeting of the Abstruse Homeowners Association is void on the ground that it unreasonably interferes with the rights of the applicants. This order takes effect immediately.
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.
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