Lockdown: The legal aspect of utilising common property in a complex

Legal technicalities aside, it is important that people obey all the regulations in place in the common interest of SA.
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There have been mixed messages about whether residents in a sectional title scheme can jog or walk their dogs within a complex during the current lockdown.

The amended Regulations – published on April 2, 2020 in Government Gazette No 43199 – applicable to the Covid-19 lockdown (Regulations) provide that for the period of the lockdown, every person must be confined to his or her “place of residence”, unless it is strictly for purposes specified in the regulations.

It is reasonably certain that in terms of the regulations, people that reside in free standing houses may jog or walk their dogs only within the perimeters of their houses – such as their yards – simply because this is done within the confines of their place of residence. However, can the same be said about people residing in sectional title schemes?

A sectional title scheme would be your typical complex where people are registered owners of sections, or flats, along with the undivided share in the common property forming part of these sections. In terms of the Sectional Titles Schemes Management Act 8 of 2011 (act), a section is defined as building or buildings and the land comprised in a sectional title scheme – divided into two or more sections and common property shown on a plan approved by the Surveyor-General. Common property is defined as the land included in the sectional title scheme and parts of the buildings.

From the definition of a section and common property, it is clear that when a person is part of a complex that person owns a flat, and co-owns any other land in the complex that is not part of any other owners’ flats, as detailed in a plan approved by the Surveyor-General.

The act provides that with effect from the date on which any person other than the developer of a sectional title scheme becomes an owner of a section in the scheme, a body corporate shall be deemed to be established in terms of which any person who becomes an owner of a section in the scheme is a member of that body corporate.

Once a body corporate is established, it may exercise the powers conferred upon it under the act or the rules of the scheme, including the power to do all things reasonably necessary for the management and administration of the common property. In relation to owners of sections in a scheme, the act provides that owners must use and enjoy the common property in such a manner as not to interfere unreasonably with the use and enjoyment by other owners or other persons lawfully on the premises.

In this regard and without detracting from the purpose of the lockdown, can it be said that the regulations prevent co-owners of common property in a complex from jogging or walking their dogs in the common property that is within the confines of the complex?

Whether the regulations prohibit residents from jogging or walking their dogs within a complex essentially turns to what is regarded as confines of place of residence in a complex. There is no doubt that a person’s flat in a complex is their place of residence. However, as a co-owner of common property in the very same complex, is such a common property part of your place of residence?

Often there are rules in a complex that provide for instances where owners may be prevented from accessing the common property in a complex, such as rules relating to parking areas for the exclusive use of particular owners. Apart from rules that are reasonably necessary for the management and administration of the common property, it would be unreasonable and unlawful for owners to be denied access to any common property in the complex. Furthermore, owners jogging and walking their dogs in the common property could be regarded as enjoying the common property in such a manner that does not interfere with the use and enjoyment of other owners.

Legal technicalities aside, it is important that people obey all the regulations in place in such a manner that will achieve the intended outcome of overcoming the pandemic that is affecting us all.

Hopewell Sathekge is director at Lawtons Africa.

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I think the national body that all home owner associations now must belong to put out guidance that common property is not a person’s residence so no walking the dog etc.

For me there is, for purposes of public health in covid context, no difference between a public park anybody can go to and common property in gated community that multiple home owners can use.

There is a HUGE difference –The Public park does not in any way belong to you and you did not pay for it directly !!

Casper, I said in context of covid regulations

Think different : yes you own 1/100th of your HOA roads. Police will still arrest you if you walk around exposing yourself to the neighbours on “your” property

“Exposing” yourself to the neighbours will get you arrested virus or no virus, 🙂

A contextual interpretation is applied in this instance – that will deliver us to the common purpose of curbing the spread of the virus. Even your right to enjoy any such property may be limited in such instances.

This is completely ridiculous. Already people are trying to juggle their understanding of common property, so to exclude those who also reside within that property! Whats going on here? ?Why alienate your fellow South Africans?

Given in a township, by the way, when you step out of your tin shack and 2 m away another person steps out of theirs, is this then common property – meaning the two meters that separate you? Or not? How do you go to get water? the common toilet? can you take you dog with you? Are you crossing common property.
Don’t be stupid, please. Those lucky enough to own sectional title should be so entitled to use the section and the title.

So you said a lot, but you said nothing. I was hoping to find legal clarification on the matter, as your title suggested.

I believe that an answer was provided – albeit in legalese:
“Apart from rules that are reasonably necessary for the management and administration of the common property, it would be unreasonable and unlawful for owners to be denied access to any common property in the complex. Furthermore, owners jogging and walking their dogs in the common property could be regarded as enjoying the common property in such a manner that does not interfere with the use and enjoyment of other owners.

I would love to get a qualified second opinion from a legal specialist on this !! There are MANY readers who are affected in this matter !!!

Darwin: this from a large estate’s notice to owners:

“ As a member of the Association of Residential Communities (ARC), NAMEREMOVED has received a Notice from the Association, together with a Directive from the Community Schemes Ombud Service (CSOS).

The CSOS is a statutory body, established in terms of the Community Schemes Ombud Service Act, 2011 (Act No 9 of 2011), to regulate the conduct of parties within community schemes (i.e. residential estates).

In terms of the CSOS Directive, walking in Common Areas, jogging, walking dogs and playing golf are prohibited, based on the President’s instruction for everyone to stay at home, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant or seeking emergency, life-saving, or chronic medical attention. This is also in line with the wording of the Lockdown Regulations as published in the Government Gazette on 25 March. Copies of the ARC notice and the CSOS directive are attached for information.

Estate Management has taken legal advice in this regard and, after careful consideration of all the circumstances, decided that we must amend the last two notices sent out to residents in line with the CSOS Directive. Accordingly, please note that residents are required to remain on their properties and may not walk, jog, walk dogs or cycle on Common Areas within the Estate.”

… in the COVID instance, any such limitation or prohibition shall not be deemed unreasonable – the purpose of the limitation is aligned to public policy and is for the greater good, therefore your individual rights may be limited to serve such purpose.

Guys, if there is the established believe and data backing it on News24 that the virus will start to spread again after the lockdown and will peak in September to 1.5 million in Gauteng alone and which would have given the health department sufficient time to prepare for the pandemic, I am not sure why we are concern about the the mundane legal issues in our lives.

With respect sir – You will be concerned if couped up in a 60 sqm flat for 5 weeks in a row !!!

You can walk to your car 200 times a day, even different cars seemingly getting lost !

Lock down. What have these draconian regulations achieved? For my family, it’s like a staycation but we have no income anymore. Our debts are still payable. For my neighbours in the middle class suburbs I guess it is similar. A total disaster for the average family from which few will rebound. But we are all huddling in our houses and self isolating. And we are reasonably comfortable.

However for the majority of the citizens of this country there is no such thing as self isolating due to the population pressure. It is impossible to keep shack dwellers inside their tiny homes 24/7. So they are out and about as I’m sure you would be under the same circumstances.

So research what happened at Masiphumulelo yesteday.
https://www.dailymaverick.co.za/article/2020-04-12-handing-over-authority-to-securocrats-has-made-ramaphosas-heavy-cross-impossible-to-bear/

In what way has this heavy handed approach benefitted anybody? Those people should be provided with food and basic necessities instead of being beaten. The will be hungry for weeks to come. How is that going to turn out?

Because of the behaviour of the majority (not their fault) the lockdown will fail to contain the spread of the virus. So we will have an economic disaster AND infected people everywhere.

That will lead to a prolongation of the lockdown and more desperate people.

One wonders how it will all remain peaceful. I think our leaders have made a grave miscalculation.
Good luck.

I know of a complex where they have a roster for walking on the common property.

They do have a letter containing legal opinion.

Forget all the legalities of it.
Show some social responsibility.

So who actually has the right to decide what the “social responsibilities” are. Why bother to have a bill of human rights, a constitution, a democracy, a justice system and a set of laws and contracts when we should ignore those for the “common good”. I thought that we have rights, according to the law, for the common good.

When a politician abuses the fear of ignorant and naive people and uses unproven and faulty models to motivate ad-hoc and arbitrary measures to temporarily abolish individual rights and property rights, we let the genie out of the bottle.

Are you telling me that we should allow a politician, who has the burning desire to control society, to decide what our social responsibilities should be? It is good intentions like these that empowered Hitler, Lenin, Stalin and Pol Pot.

“He who is unfit to serve his fellow citizens wants to rule them.”
― Ludwig von Mises, Bureaucracy

@Be serious ….exactly …trust everything wth the government…. even your cigarettes…

Don’t shop for food, don’t go to the pharmacy, ….in case you pass someone by…

Good God ….get serius why don’t you?

Free legal advice should be taken at face value

Just slip out for a quick walk around the complex in the middle of the night for goodness sake. If you do encounter anybody else just stay at least 8 metres away from them and don’t stop for a chat.

If someone were diagnosed in your complex then it would remain on surfaces and in the air for at least 24 hours… Imagine if you were assaulted while doing this… the police would not help you as you were breaking the law… I know of complexes where people were egged and shot with air rifles while walking their jogs and jogging….the police did not help them as they were breaking the law

Ok hold on. If you act with the intent to cause bodily harm you yourself are breaking the law – regardless of whether your target is an ‘illegal dogwalker’. Claiming that the ‘lawbreaker’ has no protection is analogous to saying you are allowed to shoot to kill if someone merely walks across your property or that you can purposefully ram the car of a person who fails to stop at an intersection.

Your risk of infection with Sars-CoV-2 is predominantly due to your own actions.

A single walker or jogger poses ZERO threat to anybody else. The ‘ban’ that has been imposed is of a punitive nature and suburbanites are soft targets. Let us stop thinking that joggers and dog walkers are the problem here and have a look at what is happening in the streets, shops and townships. Neighbours should be looking out for each other and hopefully, we can all agree that there are responsible ways to move around freely without draconian and absurd blanket restrictions.

It’s rubbish to state that ‘the virus remains in the air for 24 hours.’ You are quoting a very selective passage relating to the virus in an aerosol situation, not applicable to daily life. The only way the virus can be transmitted is by direct human contact – either by being coughed on at short range or transferred by human touch. That’s it. So people walking around a complex, maintaining a safe distance, will not infect one another.

if you are not sure, how available do you think your legal advisors will be, when you are arrested and put in jail. That should answer your questions. Stay at home !

If there is a roster then there cannot be a problem as there is no Social mixing. Common property belongs to all : If there is an agreed Roster , no one is Predjudiced ; really Petty /Malicious neighbours who see this as a problem !!

If someone throws a rock at you while breaking the law then the police will refuse to help you… goodluck

For me it’s easy, an HOA or Body Corporate can make stricter rules, not laxer.

You can make your speed limit 30, but not 120 which is illegal in built up areas.

Imagine, the HOA “allow” men to enjoy the communal spaces by beating their wife’s there. Ridiculous!

This is not even a “spirit of the law” thing. If one is restricted to ones home, that is it, only your home.

The trustees of our large estate told us that according to legal advice they obtained and because the estate is locked down itself we are permitted to walk in the common property. The police have visited and are ok with it.

Oh please have the balls to name your complex also…. You know you are spreading false rumors

not so : I too have a police letter OKing it

Are you saying your residents can visit the park willy nilly and exceed the prescribed limit of persons? i doubt that very much – any interpretation should deliver upon the purpose and spirit of the lockdown regulations.

Agreed Expat: Trustees of my sons Complex have authority from the police to use the central common property (Garden) but on a roster basis and provided Covid warning signs are erected within the area .Sensible in my opinion:
If I lived there I,d blow a Vuvuzela outside the objectors door !!

Seriously people… Just obey the law! can people not just stay in their own homes for a month??

There are complexes where those defying the rules were egged and shot at with air rifles… the police refused to help them as they were breaking the law…. so good luck to those who defy the law as then they will therefore not be protected by the law

@dogmoodley69 ….your comment so juvenile, that your username says it all !!

…and here we argue the “yays or nays” of how us the MINORITY (I include myself) of how we should interpret our restricted movement under C19.

I would take my guidance/cues as to how the MAJORITY of SA citizens deal with these rules, and lets focus on that instead.

Agree with commenter “boomgloom”…people living in informal areas (those have the same rights & obligations as us “haves”) I have questions for:
How far outside their shack are everyone allowed to venture out??
Are you allowed to borrow the proverbial “sugar or coffee” from your neighbor, located 5 meters away??
Your children in informal areas, are they allowed to play together in the dusty streets?
i.e. how far from the (mostly unfenced) dwellings? Are there imaginary lines drawn?

The above apply for probably 90% of the population. Little point we fret about what 10% of population should do, or not do. (Just apply common sense)

We’re becoming frivolous in our complexes. Abide by directives from your respective HOA’s.
Then you have various types of communal living…from glorified flats (those typical with rows of carports & upstairs/downstairs arrangements) to the upper 1% of citizens live in eco-estates / golf estates with houses almost a mile apart. OK, you’re not allowed to walk in the vast empty roads and common areas, but can’t you use plain COMMON SENSE in distancing, I ask? Yet, when we visit the store we huddle up closer in queues, be it at entrance or till queue.

And if you don’t comply, the SAPS will arrest you & lock you in CLOSE CONFINES with others in the same cell coughing & picking their noses (making mockery of C19).
(I think the SAPS & SANDF already infected big time…they work in close confines & aren’t the brightest or disciplined citizens around…)

Yes, we’re not allowed to walk in complexes, yet we talk to others unmasked within 2 metres (most of us have no idea how many drops are generated during normal speech….and some of our population have really load speech. Just imagine the spread..)

Yes, we’re not allowed to walk dog in common properly, yet most of us don’t wipe down grocery packaging after returning from store.

When last did you wipe down your car’s interior after returning from store? (don’t forget door handles, handbrake, key fob, etc). Ever wiped down your smartphone, tablet or wallet/purse after returning from store?

Ooooh noooo….but you’re not allowed to walk in common property! How about using some common sense people, and think further than our noses?!

This lockdown will help us very little in the end, as everyone will get infected during course of this year. And we’ll be throwing out the economy with the bath water!

@MichaelfromKlerksdorp …..right !

So, everyone, have you not got to the next logical burning question…:

Whats the real agenda behind all this then ??

The Trustees of our complex have ruled that nobody may leave it during lockdown, except for the purpose of obtaining medical aid. We are therefor not allowed to leave the complex to obtain necessary goods as provided for in the national lockdown regulations. Is it within their powers to impose and enforce this restriction on residents?

No it is not : simple as that: Their rules applying to Lockdown cannot exceed Lockdown Rules : Get new Trustees

End of comments.

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