Can an owner or tenant run a business from their section in a sectional title scheme?
Working from home is a trend change that was accelerated due to the Covid-19 pandemic and resulting lockdown measures from the government to flatten the curve of infections. More companies are making it possible for their staff to work remotely for the foreseeable future. With the easy access to systems online, it makes sense to create a home office, rather than risking possible infections at the office when possible.
There is an immense difference however between working from home and running a home-based business. The first one indicates setting up a study, work desk or simply having a laptop on the couch or in bed with no client visits or high (foot) traffic. Usually, home offices are quiet and the neighbours are not disturbed in any way, by goods being delivered and collected or the use of noisy machinery.
But if it’s the latter, the running of a home-based business, may infringe on the neighbours’ rights to a quiet place of residence, from people popping in and out or noisy machinery. Section 13(e) of the Sectional Titles Schemes Management Act (“STSMA”) prohibits an owner or tenant from using his or her section in a manner that causes a nuisance to any other occupier in the scheme. When running a business, clients coming in and out of the property can compromise security, end up in the monopolisation of the visitors’ parking and might even be in breach of municipal by-laws or residential zoning restrictions.
On the 6th of May 2021, the Chief Ombud at CSOS approved the Circular on the amendment of rules in terms of the STSMA. In this Circular you will find that CSOS guides Sectional Title Schemes in respect of the running of a home-based business in line with section 13(1)(g) of the STSMA.
13. Duties of owners
(1) An owner must –
(g) when the purpose for which a section or exclusive use area is intended to be used is shown expressly or by implication on or by a registered sectional plan, not use nor permit such section or exclusive use area to be used for any other purpose:
Provided that with the written consent of all owners such section or exclusive use area may be used for that purpose as consented to.
Section 13(1(g) must be read with Prescribed Management Rule (“PMR”) 30(f) which deals with the use of sections and common property. PMR 30(f) states that:
30. Use of sections and common property
The Body Corporate must take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area does not –
(f) subject to the provisions of section 13(1)(g) of the Act, use a section or exclusive use area for a purpose other than for its intended use as:
(i) shown expressly or by implication on a registered sectional plan or an approved building plan;
(ii) can reasonably be inferred from the provisions of the applicable town planning by-laws or the rules of the Body Corporate; or
(iii) is obvious from its construction, layout and available amenities;
Thus, if the unit you bought or looking to buy is registered as a residential unit in the relevant sectional title scheme, no business may be run from that unit. It is not all doom and gloom, provided that with the written consent of all owners in the sectional title scheme, a residential section or exclusive use area may be used for the purpose of running a business as consented to.
In conclusion, the STSMA Regulations also stipulate that the body corporate must make sure that a unit is not used in a manner as to unreasonably interfere with other persons lawfully on the premises. The body corporate can fulfil this duty by amending or updating its rules in accordance with the CSOS Circular and STSMA provisions stipulated in this post.