What you can and can’t do30th Mar 2020
We are moving into uncharted territory with the countrywide lockdown, with many people not entirely sure what is and is not allowed. And, for people living in residential estates, the additional question arises: ‘Where does my home begin and end?’
We asked Marina Constas, a director of BBM Law, to clarify some widely held concerns and uncertainties.
Do I have to stay in my house, or is it okay for me to stay in the estate?
You need to stay within your own house and garden, even if your garden is not fenced. The purpose is to prevent your coming into contact with other people, which include your neighbours, no matter how nice they are. So, if your gardens are not fenced, you should demarcate a two-metre cordon sanitaire between properties.
Can I move during the lockdown?
No. The 21-day lockdown is just that – a lockdown – and moving home will not be allowed. This obviously brings up questions of deposits, lease agreements and rent. For example, if a tenant needs to postpone a move, they will have to renegotiate the lease, and should record any amendments in writing. And, of course, the tenant would have to live somewhere, so they will probably stay where they are – but will, of course, have to pay rent. So, as they may well be unable to pay double rent (having probably put down a deposit, and a deposit for the removal company), they will have to negotiate terms with either the old or the new landlord. Of course, if there is an existing tenant, they too will not be able to move, so the two problems could cancel each other out. It is likely that most lessors will endeavour to accommodate their new tenant, especially as they have gone to considerable trouble to screen and choose them.
Will the gardeners in our complex continue working?
No. Gardening is not an essential service, so gardeners are on lockdown too, even if they live on the premises. If they do not live on the premises, they will be on lockdown at their homes.
Can we exercise outdoors?
No. Strictly speaking, you are not allowed to leave your home except to buy food or other essential supplies, to visit a medical service provider, or to collect a social grant. Or, of course, if you work in an essential service.
Can we use the clubhouse?
No. Not even if you promise to sit two metres apart.
Can estate managers, bodies corporate and HOAs tell me what and what not to do?
Yes. In terms of Section 3(1)(t) of the Sectional Titles Schemes Management Act 8 of 2011, the body corporate must, in general, control, manage and administer the common property for the benefit of all owners. This function is delegated to the trustees in Section 7(1) of the same Act. Trustees would be failing in their fiduciary duties if they did not implement and enforce government directives during the 21-day lockdown. So they may, under the present circumstances, forbid specific activities in the common areas, including cycling, jogging, walking, and even children’s playing.
What do I do if I can’t pay my levies?
Some small businesses will be severely affected by every aspect of the pandemic, including not being able to conduct business during the lockdown. As they may be struggling to pay their staff (who also need to survive), they may not be in a position to pay levies for a while, and are likely to request that they make reduced – and/or delayed – payments. Trustees can choose between two basic strategies. The simplest would be to offer a levy holiday for three months, but that requires buy-in from all residents, and would only be feasible if the body corporate has sufficient reserves. A more labour-intensive, but possibly more practical solution would be to fully assess each resident’s requests on its own merit, and to make decisions based on the factual evidence of each application, bearing in mind that the levy fund is the lifeblood of the scheme.
The gardeners aren’t working; what about the security guards?
The Department of Trade and Industry has announced that private security falls under the definition of essential services, so all security personnel within community schemes will continue to be stationed at their posts.
Can we continue with book clubs and other quiet activities?
No. No matter how quiet or genteel your book club, bridge night or prayer meeting is, the issue is not whether you are a nuisance to your neighbours. To disrupt the chain of transmission of this virus, no visitors should be allowed on the property during the 21-day lockdown unless they are immediate family, medical practitioners, or paramedics.