Disputes with your Home Owners Association and/or Body Corporate?
Approach the ombud for resolution.
There is an immense increase in property developments in South Africa, especially along the Garden Route. Property developments are in many cases community schemes accompanied by the establishment of a Home Owners Association and/or a Body Corporate (which ever applicable). Differing opinions and intentions between Home Owners Associations (and/or Body Corporates) and home owners can lead to inevitable disputes which are sometimes unresolvable between the parties involved. Various questions arise regarding the dispute resolution process between home owners and the relevant Home Owners Associations (and/or Body Corporates). The Community Schemes Ombud Service (CSOS) was specifically created to address these situations and provide home owners and administrators with an avenue to attempt to resolve these disputes in a peaceful and dignified manner.
The CSOS has a wide mandate and may attempt to resolve disputes like, but not limited to, noise complaints, parking space complaints and pet disagreements. Section 38(1) of the Community Schemes Ombud Service Act 9 of 2011 states that ‘any person may make an application to the Community Schemes Ombud Service if such person is a party to, or affected materially by, the dispute in question’. The application is an informal and affordable form of alternative dispute resolution which is facilitated by qualified conciliators and adjudicators. In most cases parties can act independently without legal representatives, but it is advisable to consult an expert to determine whether your claim holds any merit.
Applications must be lodged by completing a prescribed form, available on the CSOS website, and delivered via email, hand delivery or registered post and accompanied by payment of the required fee. After the dispute is registered, the applicant must specify the grounds upon which is relied and the relief sought. The CSOS will assess the validity of the claim and if successful, set down the application for conciliation. During conciliation, negotiations take place in the form of a hearing and is facilitated by an appointed conciliator who assists in reaching a settlement. Should this be unobtainable, the conciliator issues a Notice of Non-Resolution and refers the dispute to adjudication.
At adjudication additional investigations are conducted where further documentation may be requested, affidavits may be lodged and site inspections may take place. An appointed adjudicator considers the evidence and makes a binding order which has the same effect as a court order. If a party is in default of the order, a legal representative must be appointed to attend to the enforcement procedure at the relevant court. CSOS applications are however a relatively new procedure and some courts may be uncertain on how to give effect to these orders.
The novel CSOS application is cost effective and orders are usually handed down in a timely fashion. Disputes with your Home Owners Association and/or Body Corporate can be a hanging cloud over your personal life and lead to discomfort within your community. Addressing these disputes head-on can cause irreparable harm to relationships within community schemes. Rather consider employing the services of the CSOS to resolve conflict in an amicable manner and preserve these relationships for years to come. Should you require assistance of the CSOS, the Western Cape branch can be reached at: wc-complaints@csos.org.za or you can pop a visit to their website at: www.csos.org.za .
Article by Suegnet Van Rensburg, Candidate Attorney (LLB)
For more information kindly contact Suegnet at suegnet@rgprok.com or 044 601 9900. www.rgprok.com.
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Disclaimer
Nothing contained in this publication is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication is intended for educational and informational purposes only.
