El Rio Mews Body Corporate v Imtiyaaz Faki

The applicant, El Rio Mews Body Corporate, brought an application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) against the respondent, Imtiyaaz Faki, the registered owner of unit 18 in the El Rio Mews scheme. The body corporate alleged that the respondent had installed a non-compliant gas installation on the scheme's common property and had failed, despite repeated requests, either to provide a certificate of compliance or to remove the installation. The application sought relief under section 39(2)(d) of the CSOS Act for the removal of articles unlawfully placed on common property or a private area. The respondent did not file any written response or seek any relief.

• Whether the gas installation placed by the respondent was unlawfully attached to or placed on the scheme's common property.
• Whether the body corporate was entitled, under the CSOS Act, the Sectional Titles Schemes Management Act 8 of 2011 (STSMA), and the scheme rules, to require the respondent to remove the gas installation.
• Whether an adjudication order under section 39(2)(d) of the CSOS Act should be granted directing removal of the gas installation.
• Whether the body corporate's conduct rules regarding external appearance and dangerous or inflammable materials were enforceable against the respondent.

The application succeeded. The respondent was ordered to remove the gas installation on the scheme's common property within 7 days from the date of the order. No order as to costs was made.

A body corporate is entitled under the STSMA and the scheme's rules to control and protect common property and to enforce compliance by owners. Where an owner places or attaches an installation on common property in breach of the scheme rules and without lawful compliance, section 39(2)(d) of the CSOS Act empowers an adjudicator to order its removal. Uncontested evidence of such a non-compliant installation on common property is sufficient, on a balance of probabilities, to justify a removal order.

The adjudicator made broader observations, with reference to authority, that scheme rules operate in a contractual or quasi-contractual manner between the body corporate and owners, and that courts generally will not second-guess decisions of trustees or governing bodies in preserving the character and aesthetics of a scheme except on recognised review grounds. These remarks provided context for enforcement of the rules but were not strictly necessary beyond the finding that the body corporate could enforce the relevant rules against the respondent.

The decision illustrates the CSOS's role in enforcing sectional title scheme governance and confirms that a body corporate may use section 39(2)(d) of the CSOS Act to compel removal of installations unlawfully placed on common property. It reinforces the statutory authority of bodies corporate under the STSMA to manage common property and enforce conduct rules, especially where installations raise compliance, aesthetic, or safety concerns. Although a CSOS adjudication order is not a reported High Court precedent, it is practically significant for community scheme disputes involving unauthorized alterations or hazardous installations on common property.