The COVID-19 national lockdown has created much confusion about whether the persons living in estates or sectional titles are permitted to jog or walk their dogs within the common property of their schemes. The Disaster Management Regulations (“the Regulations”) dated 2 April 2020 state that “for the period of this lockdown every person is confined to his or her place of residence”, unless strictly of performing the acts specified in Regulation 11B. In interpreting this provision, it is clear that people residing in freehold property may jog or walk their dogs within the boundaries of their property, however the position is unclear to those residing in sectional titles and gated estates.
‘Sectional title’ refers to the separate ownership of units or sections within a complex or development. Ownership of the unit includes an undivided share in the common property. In sectional titles and estates, owners have a right to use and enjoy the common property which includes inter alia driveways, braai facilities, the clubhouse, pool and security systems.
It is evident that in terms of the Regulations, a person’s unit or complex constitutes as their place of residence. The issue arises when determining whether the common property forms part of a ‘place of residence’ for co-owners in scheme and whether the use of the common property may be prohibited during the lockdown.
Section 4 and 5 of the Sectional Titles Schemes Management Act 8 of 2011 does not entitle trustees of the body corporate to deprive owners from reasonable use of the common property. The South African Police Service (“SAPS”) however, issued a notice that those living in security estates and complexes are prohibited from jogging or walking their dogs on the common property during the lockdown period and highlighted that the lockdown regulations apply to those living in these schemes. The SAPS insisted that estate and complex managers must assist by ensuring that the regulations are adhered to with immediate effect.
Although the current regulations do not provide clarity on this issue, it is advisable that those living in complexes and estates do not jog or walk their dogs until further notice. Body Corporates do not have the power to confine residents to their units however, these are unprecedented times and regulations and directives supersede any management rules that may be in effect in these schemes. As such, it would be imperative for estate and complex managers to notify owners of the schemes of the immediate enforcement of these new rules. As stated by the SAPS, the fundamental purpose of the lockdown is to prevent the spread of Covid-19, therefore it is strongly advisable that these Regulations are adhered to. Please do not hesitate to contact us should you require any advice or clarity on any of these issues.
Written by Sinenhlanhla Nene- Candidate Attorney
Overseen by Sifiso Msomi- Partner