A recent court case has highlighted the fact that while a body corporate has a right to enforce rules, it needs to do so amicably.
It's a little concerning that a choice of floor tile can basically lead to an out and out war – but it appears this is exactly what happened when a couple decided to replace the worn flooring on the verandah of their R8.15m unit (which had been bought through a trust) in the Oyster Rock complex in the upmarket Durban suburb of Umhlanga.
Although the body corporate recognised that the tiles needed replacing, a notice sent to owners at the beginning of 2014 noted that a specific tile had to be used. The trust wasn't happy with the body corporate’s choice and suggested two other porcelain designs. These were rejected by the body corporate at its annual general meeting later that year when it was decided that owners should not make their own decisions on the replacement tiles.
The owners took the matter to the High Court before it was agreed that the dispute would be resolved by arbitration. The couple lost the first round of arbitration because the arbitrator found that uniformity was important in a body corporate scheme and that the body corporate was responsible for decision making. The couple took the matter on appeal and won the right to lay the tiles of their choice.
According to a report in The Mercury, the three advocates who dealt with the matter on appeal found that in terms of the management rules, the body corporate should have considered whether the trust’s choices would “prejudice the harmonious appearance of the building.”
They noted this was different from the body corporate specifying the exact tile that all owners had to use as this would be "unreasonable".
The final ruling read: "If an owner proposed to use a tile which although not identical is in harmony with the original tiles, no valid reason would exist for the body corporate refusing such permission."
The big question here is why this matter escalated to such an extent. The owner of the unit gives a clue when he points out in the High Court application that the body corporate was acting like a ‘schoolyard bully’ and had a ‘high-handed attitude.’ In other words this battle wasn't as much about the choice of flooring as it was about how the body corporate handled the dispute.
We have heard some dreadful stories regarding the way some body corporates treat homeowners. One incident involved a couple who had two children. The body corporate had decided that it didn't want children in the complex and started off by ruling that no one could sell to people with children. Then they turned up the heat on the existing owners who had children, making their and their children's lives unbearable with petty complaints and by trying to enforce ridiculous rules. The couple, who eventually couldn't bear the added stress of dealing with an unfriendly, unworkable body corporate, sold up and moved.
Another tactic that we've heard about is body corporate bullies targeting tenants. Deemed ‘second class citizens’ by those who run certain schemes, their lives are made miserable by people who think that being on the body corporate entitles them to bully and intimidate those who aren’t.
Body corporates have to have rules and these have to be followed, but there are ways of doing things. You are always going to find owners or tenants who refuse to toe the line regardless of how the matter is handled, but you also get those who would be more than willing to reach an amicable compromise if body corporates adopted the right approach from the outset.
Remember the Umhlanga case began with a dispute over floor tiles and probably ended up costing the body corporate a small fortune to defend. A petty squabble that turned into an expensive war…it hardly seems worth the trouble.
