Port Elizabeth: MyPE - Property Poser: Recourse Against Noisy Neighbour

www.MyPE.co.za: Our panel has received an e-mail from a frustrated reader who has been experiencing endless problems with a noisy neighbour in the security complex in which she resides.

She has also attached an extract of the conduct rules applicable to her complex.

In her letter, she states that she has taken the issue up with the chairman of the body corporate, but no action appears to have been taken against the culprit.

Charlotte Vermaak from Chas Everitt Port Elizabeth says the extract from the rules clearly states that owners and tenants have a responsibility to other inhabitants to keep the noise down.

"The rules provide that musical instruments, television sets and music systems may not be used in such a way as to cause a disturbance, and party noise after certain times is prohibited.

"She unfortunately does not expand on what exactly her neighbour does to disturb her, but let's assume he is transgressing one of these rules."

The general conduct rules are set out in the regulations to the Sectional Titles Act, says Vermaak.

"These rules can initially however be amended by the developer to make provision for certain relevant issues that will affect the use and enjoyment of sections. Noise is one such factor that can interfere with the peaceful occupation of a section by its owner or occupant."

Vermaak says neither the Sectional Titles Act nor the rules set out in the regulations contain effective sanctions against sectional owners who fail to fulfil their obligations.

Rian du Toit from Du Toit Strombeck Attorneys in PE says provision is made, for example, that an owner is not entitled to vote at a general meeting if his levy contributions are in arrears or if he persistently breaches the conduct rules.

"This is however not necessarily the end result our reader had in mind."

Typically, says Du Toit, provision should be made for the complaint to be delivered in writing and the offending owner or tenant should be allowed to submit a written reply.

"In the event of a dispute, both parties may be given the opportunity to discuss the matter at a meeting of the body corporate, whereafter any findings are referred to the trustees with a recommendation as to any action to be taken."

Du Toit says a good result may be achieved if the trustees are empowered by the rules to impose appropriate fines in the event of contraventions.

"Since we do not know what the rest of the rules in respect of this specific complex provide for, it is difficult to ascertain why the chairman has not taken action. It may be that the rules are silent on the matter of recourse."

It is possible to add to, amend or repeal the conduct rules as well as, to a limited extent, the management rules in place (either as provided for by the act or in terms of any amendments made by the developer), according to Du Toit. "This is done by means of a special or unanimous resolution of the body corporate."

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