Denied access to common property: Can trustees (lawfully) lock you out? By Nicole Tavares

Common property access restrictions in sectional title schemes

If you live in a sectional title scheme, there is a strong likelihood that you have come across a gate limiting, and in some instances even preventing access to common property areas like a rooftop garden, a locked door to the braai, swimming pool area, an area that contains all the records of the scheme or the server room that houses the recordings of the CCTV footage.

Have you ever wondered: Can the trustees actually limit an owner’s (and/or occupiers and/or tenants) access like that? The short answer is yes, well actually it’s sometimes! In this article Nicole (T) will unpack the rules and regulations regarding how and when trustees can lawfully restrict access to a portion of common property, keeping in mind that the members of the body corporate have rights too.

What is common property?

Before we get into restricting common property, let’s look at what this area in a sectional title scheme is. Common property is the portion of the scheme that is owned by all the owners together, in undivided shares, according to their participation quota. Think gardens, hallways, pools, parking areas, elevators, rooftop spaces, and so on. For a detailed explanation of what you actually own in a sectional title scheme, read Nicole (T)’s previous article: Apartments, bodies corporate and complexes: What’s the difference?

Now, as all the owners jointly own the common property, this means that every single owner in that scheme has a right to use and enjoy it, provided that their (1) use does not exclude and/or interfere with any other owners reasonable use and enjoyment of that area, and (2) and that portion of common property is not an exclusion use area.

Now I ask again, how can the trustees interfere with the access to these areas? Well, simply put, that right of access and enjoyment simply extends beyond owners.

Lawful restrictions

Trustees can’t simply decide on a whim that they are going to lock and/or block part of the common property. For the restriction to be lawful, the reason for the restriction must derive from one of following options:

The management and/or conduct rules
As the management and conduct rules (“the rules”) of a scheme are binding on owners, occupiers and tenants alike, when the rules specifically restrict access to a particular area, that restriction is legally enforceable. For example a conduct rule stating: The prior written consent of the trustees is required in order for an owner, occupier and/or tenant to access the roof area of the scheme.

In this instance, the owners would be aware of the restriction/s as they need to approve (via the relevant resolution) the updating and/or amendment of their rules. This, together with the requirement of a Community Schemes Ombud Service’s Section 10 Certificate, ensures that some trustees can’t simply sneak restrictions unilaterally,
Safety and maintenance

Trustees have a duty to maintain and/or repair the common property. If an area poses a genuine safety risk like a damaged roof structure, an unstable retaining wall and/or electrical hazards, trustees can restrict access to that area as a practical necessity. Fundamentally this isn’t about preference: it’s about protecting all residents. Trustees must ensure that the restrictions are proportionate and temporary, lasting only as long as the safety issue does.
Trustee resolution

For day-to-day operational decisions, like restricting access to a pump room or a caretaker’s storage area, to prevent tampering, trustees can act under their general management authority, without needing a special resolution of the members.

The key here is that this kind of restriction must be reasonable, necessary for the management of the scheme, and not discriminatory.

Unlawful restrictions

Making that portion of common property an exclusive use area where the body corporate would be the one holding the rights. This is not a possible solution as a body corporate and/or the trustees of a body corporate cannot be the holder of an exclusive use area.
Trustees can’t single out specific owners, occupiers and/or tenants and restrict only their access to common property (without a lawful basis). Doing so could be seen as unfair practice under the Community Schemes Ombud Service Act 9 of 2011.
Trustees cannot informally decide that a common area is permanently off-limits to residents.
Any restriction that removes a resident’s right to use and enjoy common property in a way that benefits only a few, or that is imposed without proper authority, is vulnerable to challenge.

The bottom line

While trustees do have authority to manage, and in some cases restrict, access to parts of the common property, that authority is not unlimited. Restrictions (including blanket restrictions) imposed simply by a notice on the wall, without a legal basis, will not carry the force of law.

If you’re an owner, occupier and/or tenant who has been told you can’t access a certain part of the common property, ask to see the rule or resolution that authorises the restriction. If there isn’t one, that’s your starting point for a conversation… or dare we say a dispute.

TVDM Consultants