Maria Paula Loringett v Trustees of Northwold Terrace Body Corporate

The applicant, Maria Paula Loringett, is the registered owner of unit 52 at Northwold Terrace Body Corporate in Randburg. She alleged that since purchasing the unit in 2009 she has owned a 23 square metre garage, adjacent to which is a 9 square metre spare room/store room under the same roof and separated by a brick wall. She contended that 5 square metres of the garage area encroach into that spare room, that her deed of transfer reflects the garage as 23 square metres, and that she has paid levies, insurance, rates and taxes in respect of that area since 2009. A dispute arose because the body corporate regarded the 9 square metre spare room as common property and, according to the applicant, required her to inform any estate agent and prospective purchaser that the store room formed part of common property and was not part of the sale. She approached the Community Schemes Ombud Service seeking relief under section 39(6)(d) of the CSOS Act. The respondent body corporate filed no submissions.

• Whether the applicant had produced sufficient evidence to prove that the disputed 9 square metre spare room formed part of her section rather than common property.
• Whether the adjudicator had power under section 39(6)(d) of the Community Schemes Ombud Service Act 9 of 2011 to grant the declaratory relief sought by the applicant.
• Whether the body corporate's stance regarding the spare room could be reviewed as unreasonable, unlawful or not in the best interests of the scheme.
• Whether, on a balance of probabilities, the applicant had established entitlement to relief against the body corporate.

The application was dismissed. The adjudicator ordered that the relief sought by the applicant against the respondent is dismissed, and made no order as to costs.

An applicant seeking relief before the CSOS must establish, on a balance of probabilities and with adequate supporting evidence, that the disputed property right or complaint falls within the statutory relief contemplated by section 39 of the CSOS Act. Where the applicant fails to prove that an area forms part of the section rather than common property, and fails to substantiate that the body corporate acted unreasonably or unlawfully, the adjudicator is not entitled to grant relief.

The adjudicator observed generally that decisions of bodies corporate and trustees, though not public in nature, may be reviewed under common-law principles of legality, reasonableness and lawfulness, read consistently with PAJA and section 33 of the Constitution. He also made general remarks describing common property and the maintenance obligations of bodies corporate and owners under the STSMA. These observations were not decisive because the application failed primarily for lack of evidence and lack of a proper basis for the relief sought.

The matter illustrates that in CSOS proceedings an applicant must still prove entitlement to relief even where the body corporate does not participate. It also underscores that CSOS adjudicators are confined to the forms of relief expressly authorised by section 39 of the CSOS Act and cannot grant orders outside that statutory framework. In the sectional title context, the case reaffirms the importance of proper proof when disputing whether an area forms part of a section or common property.