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Question:
I'm a tenant in a block of flats in Durban. The area of each flat (they all have two bedrooms) is about 85m². At present there are 15 flats in the block with an average of two occupants per flat.

The current house rules of the block state that there may only be five people per flat. At present there are six people occupying the flat that I'm renting; four adults and two children aged five and seven.

The Board of Trustees recently considered amending the house rules to state that only four people may occupy each flat. We have a feeling that they are discriminating against us as we are the only flat that has children occupying it. The majority of the occupants of the other flats are middle-aged to elderly men and women. The owner of the flat I'm renting is aware of the house rules, and the number currently occupying the flat, and she doesn't have a problem with the arrangement.

By law, can the body corporate force us to remove two occupants, bearing in mind that the two extra occupants are children? Secondly, does it have to be a unanimous agreement among the trustees to amend the house rules?

The reason for the second question is because my uncle also lives in the block, but he owns his flat and is thus a trustee. He of course would not vote in favour of amending the house rules. We cannot find any logical reason for them wanting to amend the house rules, or wanting to have us evict two occupants as we are not troublesome tenants in any way. On top of all this, the owner of our flat is looking to sell it to us and I'm in the process of obtaining a bond. I will, therefore, hopefully be an owner within the next couple of months.

Any advice or help regarding the above would be greatly appreciated.

Answer:
Your question raises a number of issues which I will deal with separately:

If the body corporate passes a rule restricting the number of occupants in a two bedroom section to four people, can we be forced to remove two occupants?

The body corporate can only attempt to remove two occupants from the section in which you reside on the basis of a valid and enforceable title deed restriction or rule. You mention that the trustees recently considered changing the 'house rules'. The Sectional Titles Act 95 of 1986 ('the Act') does not provide for 'house' rules only for 'management' and 'conduct' rules. A scheme's conduct rules are often mistakenly referred to as 'house rules' and therefore I presume in this case that when you refer to 'house rules' you are in fact referring to the scheme's conduct rules.

For a conduct rule, such as the proposed rule restricting the number of people in each section, to be valid and enforceable it must be:

1. properly passed by the body corporate;

2. reasonable (bearing in mind all the circumstances at your particular scheme) and apply equally to all owners of units put to substantially the same purpose; and

3. filed in the scheme's file held at the relevant Deeds Registry.

How is a conduct rule properly passed?

For the scheme's conduct rules to be amended by the addition of a rule or the amendment of an existing rule, the body corporate must authorise the amendment by special resolution.

A special resolution can be passed in one of two ways:

1. at a general meeting of the body corporate; or

2. by the necessary majority of owners agreeing in writing in what is known as a 'round robin' procedure.

A special resolution at a meeting requires the following:

• notice of the meeting, specifying the proposed resolution, must be sent to all persons entitled to attend general meetings and at least thirty days notice must be given unless the trustees have decided that shorter notice is appropriate;

• at the meeting a quorum of persons entitled to vote must be present or represented; and

• of those present or represented and entitled to vote, 75 percent in number (by show of hands) and in value (75 percent of the participation quotas present or represented at the meeting) must vote in favour of the resolution.

A special resolution by round robin procedure requires the following:

• 75 percent in number and value of all owners must agree to the resolution in writing.

The main issue in the context of this rule is the reasonableness factor. Is it reasonable to restrict the occupancy of two bedroom sections in the scheme to four people?

Unfortunately to the best of my knowledge an arbitrator or judge has not decided what number of persons occupying a sectional title section is reasonable and therefore we have no precedent on which to rely. I would suggest approaching the Town Planning Department at your local authority and find out what its rules and regulations are in respect of overcrowding. I have a feeling they will apply a far more liberal level of density than four people per two-bedroom section. When we draft rules that contain restrictions against overcrowding we usually refer only to the number of adults per section and do not restrict the number of children, due to the potential unreasonableness of such a restriction.

If the body corporate follows the correct procedures and passes a rule which you believe is unreasonable and therefore unenforceable despite the fact that it has been filed in the scheme's file, I suggest that you approach a local attorney for assistance in defending any attempt that the trustees make to evict occupants of the section in which you reside.

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