Should body corporates relax maximum occupancy rules?

Sectional title specialist Marina Constas to weigh up the factors that need to be considered.

As the economy continues to struggle along, many families have found that they can no longer afford their bond or rent for their current abode, says Refilwe Moloto.

One way to cope is to move into smaller units, as the rent is lower, but many of these flats have a maximum occupancy clause, mostly determined by the complex's body corporate.

Should body corporates be looking into increasing the maximum occupancy of units in order to make it more affordable for people to find accommodation?

Refilwe Moloto speaks to sectional title specialist Marina Constas to weigh up the factors that need to be considered.

Constas says it is a topic that is top of mind and needs interrogation.

She explains that currently, the Sectional Title Scheme Management Act does not deal with the issue of overcrowding in the body of the act. One has to rather look at the conduct rules.

Then, running alongside the rules of the scheme, are the municipal by-laws, she adds,

So, you have a lot of complexes that will say in their rules, for example, if you have a bachelor flat then you cannot have more than two people in one bedroom - or if you have a two-bedroomed flat then you cannot have ore than four people.

Marina Constas, Specialist sectional title attorney - BBM Attorneys

She says these complexes glean this from the National Building Regulation, but this is based on design rather than law.

When one looks at the municipal by-laws, they do vary between municipalities, she says.

We cannot change municipal by-laws. That has to be changed by government gazette and they look more at the health issues of overcrowding, and they say that you can't have more than a certain number of people per sanitary convenience, in other words per toilet.

Marina Constas, Specialist sectional title attorney - BBM Attorneys

Refilwe points out that there are three pieces of legislation that govern how people live in South Africa. Given this, how much power do body corporates have she asks?

You do have a lot of power in your rules but the preface is the rules have to be reasonable and have to be applied consistently to all owners.

Marina Constas, Specialist sectional title attorney - BBM Attorneys

Constas says as urban densification changes, body corporate rules should perhaps become less restrictive.

At the same time, you have to protect the interests of the homeowners and people who are renting out their units. You don't want a complete reduction of market value and potential rental income to decrease to the point that it is not worthwhile.

Marina Constas, Specialist sectional title attorney - BBM Attorneys

Listen to the interview with Marina Constas in the audio below:

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