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Resolving residential frictions

Spotlight on dispute resolution

By Esther de Villiers

, |

Resolving residential frictions

Spotlight on dispute resolution

By Esther de Villiers

, |

3 min read

Conflict resolution between estate managers and residents is often a work in progress. How long does it take to resolve disputes, and how can rules be amended? Nipping conflict in the bud internally and early seems the answer in most cases.

Doc up!

All bodies corporate must have documentation in place to deal with conflict among homeowners, or between residents and estate management.

‘These documents must officially include a constitution and architectural guidelines, and must be signed by anyone who buys into the estate, making it binding from the outset,’ says Gerhard van Huyssteen, director of Plett’s Duin-en-See Ecological Estate.

Battles before occupation

According to Van Huyssteen, disputes often emerge even before building is completed. ‘Each estate typically has an elected architect and architectural design committee, and owners are obliged to submit draft plans, which are mostly approved swiftly.

‘However, in case of clashes, new owners and their personal architects meet with estate representatives to discuss, resolve, and pre-empt any future design disputes,’ he says. Rows involving pets, renovations, refuse removal, fences or security would generally be brought to the attention of homeowners association (HOA) trustees, who would rule before calling in the relevant ombudsman, or going the legal route.

‘When owners disagree with trustees, they can try convincing a majority of homeowners to swing the proverbial vote, but most cases would require convening a special AGM before rules could be revisited.

‘Failing this, some disputes do end up in a court of law, but we see this outcome as the absolute final resort.’

Changing the rules

Attorney Neil Mc Kinon of Hammond Pole concurs. ‘Amendments to the management and conduct rules require unanimous resolutions at special meetings, which can also lead to disputes between members and the association.’

He says the most common of these is non-payment of levies and the management of estate administration, particularly during tough economic times.

Carry on rewardless …

Jos Malherbe of Van Riebeeck Apartments in Kloof Street, Cape Town, says that however big or small an estate, the body corporate’s rulebook is always the starting point.

‘Conduct rules are available to owners and tenants. These are the blueprint for managing complaints and critical to attaining positive outcomes.’

These rules should include all possible points of contention, the most prevalent in Malherbe’s experience being noise during quiet hours, parking, and renovations. Penalties listed in the Van Riebeeck rulebook include fines of up to R1,500 upon a fourth written warning. ‘An active set of trustees is essential,’ he says, adding that it’s a thankless job for many serving in this capacity.

When not resolved internally, most disputes can be settled via the Community Schemes Ombud Service (CSOS). ‘Anyone who is party to or materially affected by a dispute may apply for adjudication,’ says Charles de Meillon, candidate attorney at Gillan & Veldhuizen. ‘The process is streamlined to settle disputes in a user-friendly yet effective format similar to statutory adjudication bodies like the CCMA.’

Rapid and reasonable

Lisa Schmidt and Kyle Venter of Schindlers Attorneys claim that the CSOS is cost effective, and orders are usually handed down timeously. Exorbitant legal fees are prevented, as many matters are settled amicably at the conciliation phase.

‘A drawback, however, is that the process is relatively new and courts are often uncertain on how to give effect to CSOS orders. You may be pitted against an experienced CSOS practitioner, putting you on the back foot at hearings.

‘This is where the expertise of a property lawyer will come to your aid, as they understand the relevant legislation and can assist in actioning CSOS disputes and enforcing orders.’

Time equals money

The cost of conflict resolution depends on the complexity of the issue. Applications to court can cost up to R150,000 over six to eight months, says Mc Kinon. ‘If an urgent application is necessary, it can be substantially more.

‘Legal representation in court or a CSOS hearing vary from R1,500 to R4,500 per hour depending on the seniority of the attorney. First trying to mediate the matter, before paying substantial fees, is the most cost effective.’

The CSOS was designed to regulate the swift resolution of disputes, yet the adjudication process can be cumbersome, taking 12–18 months due to volumes and capacity. Obtaining a court order may take 8–12 months, but urgent applications can be resolved within days.

‘However, the costs involved in filing an urgent application are very high and grounds for urgency must be shown, failing which it will be struck from the urgent roll. This can also result in hefty costs,’ he says.

When adjudicated by the Community Schemes Ombud, a fee of R50 is payable when referring a dispute, and another R100 is charged when the matter proceeds to arbitration.

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