A visitor is not defined in the Sectional titles Act or prescribed rules. Paddocks Club member, Myburgh, has defined a visitor as “anybody not permanently resident in the scheme.” I would like to add that a visitor is any person who is an invited guest of any of the owners or occupiers. There are many categories of visitors. A visitor could be a family member, friend, colleague, service provider etc. This leads to an important question, when does a visitor become a resident?
There is no explanation for the distinction between a resident and a visitor. Nights per month spent in the scheme seems to be the most common measure for the distinction. Where a visitor stays over every weekend it may be that the visitor becomes a regular resident. It could also be that visitors stay for a week, thereby exceeding the amount of people allowed to stay in a flat. This then becomes an issue of overcrowding. If the scheme has a rule restricting the number of persons occupying a particular sized flat, the trustees must enforce the rule reasonably. The body corporate could also make a conduct rule dealing with the period of time a visitor can reasonably stay over at any owner or tenant. Some schemes issue a limited number of overnight parking tokens to residents for the use of their visitors.
A related issue is how many visitors an owner can entertain at any one time. The body corporate should not adopt overly restrictive rules in this regard. Where an owner celebrates their birthday and during festive periods such as Christmas it is reasonable to expect that residents would entertain more than usual. Where one resident, on a regular basis, entertains numerous visitors at any one time it could put pressure on the visitor parking bays, and cause a noise nuisance to other residents. Residents should always bear in mind that they reside in a community scheme.
The next question for consideration is whether the trustees can regulate visitor access to the common property, for example by asking them to provide identification when entering the scheme. You will need a specific rule that authorises the body corporate to require visitors to identify themselves before being allowed into the scheme. The making of such a rule will ensure that such a measure is supported by a substantial majority of the owners.
Another interesting issue is whether it is acceptable for visitors to bring their pets along with them to the scheme. Anton Kelly is of the view that the applicable pet rule at that scheme should be the guide. A visitor has no more extensive rights than the resident he or she visits in respect of the use and enjoyment of the common property. Therefore, if there is a no pet rule, owners would need to ensure that their guests do not bring their pets when they visit. Anton adds that guests must also observe any existing rules regarding leashes, clean up, noise etc and show normal consideration to the community scheme in respect of their pets. Professor Graham Paddock’s point of departure is that a visitor to a scheme has no rights to bring any pet onto the common property, whatever its rules contain in regard to residents keeping pets. But he added that where it is practical for a visitor to make an advance request to the trustees for permission to bring their pet when they visit then, depending on the circumstances, it could be considered reasonable for the visitor to bring their pet along.
The final discussion relating to pets is whether the scheme rules are binding on visitors. Section 35(4) of the Act provides that the rules “bind the body corporate and the owners of the sections and any person occupying a section”. How are visitors’ actions then regulated? PMR 69 states that the provisions of the management rules and conduct rules, and the duties of the owner in relation to the use and occupation of sections and common property shall be binding on the owner of any section and any lessee or other occupant of any section, and it shall be the duty of the owner to ensure compliance with the rules by his lessee or occupant, including employees, guests and any member of his family, his lessee or his occupant.
What is the extent of owners’ liability for the actions of their visitors? The imposition of the duty on owners to “ensure compliance” with the rules has been widely interpreted as the imposition of a strict liability which implies that the body corporate can fine, and otherwise act against an owner on account of the actions of his or her visitor when they act in a manner alleged to be a breach of the rules.
Image source: shifflerequip.com
Article reference: Paddocks Press: Volume 10, Issue 12, Page 1.
Carryn Melissa Durham is one of the most highly qualified Sectional Title lawyers in the country (BA. LLB, LLM and currently completing her Doctorate in the subject), Carryn forms part of the Paddocks Private Consulting Division.