The Trustees of Southdale Mews Body Corporate v Errol Ecs

The applicant, the Trustees of Southdale Mews Body Corporate, brought a dispute-resolution application under the Community Schemes Ombud Service Act 9 of 2011 against the respondent, Errol Ecs, the tenant/occupier of unit 221 in the Southdale Mews sectional title scheme. Water damage had appeared on the ceiling of the unit below, unit 121, and the body corporate suspected that a leaking water pipe in or beneath unit 221 was the source. The caretaker and trustees repeatedly sought access to unit 221 to inspect and repair the leak, including by verbal requests, a written notice giving seven days' notice for access on 10 July 2023, and attempts involving security and the police. The respondent refused access, asserting that the body corporate had no legal right to enter the unit. The unit had belonged to the respondent's deceased mother, and the estate had not yet been finalised; although an executor existed, the respondent did not recognise the executor's authority. The respondent filed no submissions in the adjudication despite being invited to do so. The applicant placed before the adjudicator photographs of the water damage and copies of emails sent to the respondent and the executor.

• Whether the respondent's refusal to grant access to unit 221 for inspection and leak detection constituted a nuisance or behavioural issue justifying relief under section 39(2)(a) of the CSOS Act.
• Whether, under section 13(1)(a) of the Sectional Titles Schemes Management Act, an occupier/owner must permit access on notice to allow inspection and repair of pipes, wires, cables and ducts capable of being used in connection with another section or common property.
• Whether the body corporate, in fulfilment of its maintenance obligations under section 3 of the STSMA, was entitled to obtain access to investigate the source of the leak affecting another unit.
• Whether any costs order or order relating to ultimate liability for repair costs could be made in the absence of the executor of the deceased estate being joined as a party.

The application was granted. The respondent was ordered to grant the applicant access to unit 221 within 24 hours of the order. If the respondent persisted in denying access, the applicant was authorised, within 48 hours of the order, to employ a locksmith and gain access to the unit to conduct an inspection and leak-detection exercise to establish the cause and source of the leak. No order as to costs was made.

In a sectional title scheme, where there is prima facie evidence that a leak or related infrastructure within or accessible through a section may be causing damage to another section, the body corporate is entitled, in fulfilment of its maintenance obligations under section 3 of the STSMA, to access that section for inspection and repair; correspondingly, under section 13(1)(a) of the STSMA, the owner/occupier must permit such access on proper notice. A refusal that prevents investigation and allows damage to continue may constitute a nuisance or actionable behavioural breach warranting relief under section 39(2)(a) of the CSOS Act, including an order compelling access and, if necessary, authorising entry to be obtained.

The adjudicator observed that the executor of the deceased estate ought to have been cited as a respondent because the unit formed part of the estate, and that the applicant would need to bring a fresh application against the deceased estate to recover any access-related costs. The adjudicator also included broader general remarks on the distinction between common-property maintenance and owners' maintenance obligations, and cited general descriptions of private and public nuisance from case law and secondary sources. There is also an apparently irrelevant statement at paragraph 6.21 concerning children allegedly causing a nuisance, which does not relate to the facts of this dispute and appears to be an inadvertent carry-over rather than part of the decision's reasoning.

The decision is significant in the community schemes context because it affirms the body corporate's statutory right and duty to obtain access to a section where this is necessary to investigate and maintain infrastructure affecting another section or common property. It illustrates the use of section 39(2)(a) of the CSOS Act to address obstructive conduct as a behavioural nuisance and confirms that the CSOS can grant practical coercive relief, including authorising forced access via a locksmith where access is unlawfully denied. It also highlights the procedural importance of joining the executor where a unit forms part of a deceased estate, particularly where consequential cost or liability orders may be sought.