If the executives, owners or occupiers in a community scheme dispute that one or more of the governance provisions is reasonable, they can make application to the CSOS to have that provision removed or changed.
In terms of section 39 (3) (d) of the CSOS Act, an application may be for:
“an order declaring that a scheme governance provision, having regard to the interests of all owners and occupiers in the community scheme, is unreasonable, and requiring the association to approve and record a new scheme governance provision-
(i) to remove the provision;
(ii) if appropriate, to restore an earlier provision;
(iii) to amend the provision; or
(iv) to substitute a new provision”
Examples of issues
A home owners association constitution has been amended to provide that that dogs over two feet in height are not allowed and must be removed from the scheme. An owner who has two Great Dane dogs on her 1500 square metre individual property believes that this provision is unreasonable and wants the pet clause in the constitution amended to read as it previously did before the recent amendment.
The directors of a share block scheme on the seafront has made a rule that no flat may be let out for a shorter period than 12 months and that all owners can only advertise their flats for rental via a particular letting agency which will protect the share block’s interest and vet prospective tenants on its behalf. An investor owner believes that the period is too long and that the requirement to contract with only one letting agency is anti-competitive and unfair to him.
Example of order
An example of the type of order the CSOS could give is:
1. article 72 of the Valley Muse Homeowners Association constitution is unreasonable , having regard to the interests of all owners and occupiers in the scheme; and
2. the scheme must, within 30 days of the date of this order, substitute a new governance provision.
Is this not the right order – is either the type or category is wrong for your matter?
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