Having recently sold their beautiful, spacious home in a leafy, quiet suburb, north of Johannesburg, Len Cohen and his wife Lisa are settling into their smaller, but comfortable townhouse rather close to their old home. If truth be told, they were forced to scale down by their children, who of late had become downright dictatorial about the fact that the Cohens were battling to cope and maintain a large household. All was going well, until the Friday of the first week.

The commotion started in the early afternoon with what appeared to be a “pack” of children aged between eight and twelve careering recklessly on their skateboards down the long, sloped driveway leading into the complex. This frenetic activity was accompanied by whoops of excitement and calls of encouragement to go faster. If this wasn’t disconcerting enough, the next day, an even larger group of teenagers congregated around the clubhouse, egging each other on to see how far their pellet guns could fire, and what possible unsuspecting bird they may hit. Mr Cohen decided to take things into his own hands by approaching the parents of the youngsters in order to point out the difference between what is and what is not acceptable behaviour. It is safe to say that Mr Cohen and said parents will no longer be chatting to each other on a neighbourly basis, particularly after one set of parents advised him to “bugger off to a Retirement Village”, and an outraged mother informed him that she would take him to Court for attempting to break her child’s spirit.

This scenario doesn’t surprise me one bit. Parents tend to become defensive immediately if their children are attacked in any way. The difficulty in many complexes is that the Rules of the scheme do not sufficiently lay down what can and can’t be expected from children or their parents. Trustees or Directors have a duty to set out what is acceptable behaviour by children, bearing in mind at all times that any rule which is made in this regard must be reasonable. There is a balance between peace and quiet on the one hand, and the interests of the children who reside in the scheme on the other. Although many types of behaviour may seem harmless, I have, in my experience seen serious situations. Take for example the three children in an upmarket complex in Northcliff who decided that it would be fun to open the petrol caps of every car in the complex, and pour sand into the cars’ petrol tanks; or the case of two kids at a large scheme on the Vaal River causing havoc when they drove their quad bike into the lounge glass window of a unit, nearly killing the occupant who was watching television. To their considerable credit, the Trustees of these complexes immediately drafted new rules headed “Supervision of Children”. The rules were passed by a special resolution of the owners, and stated that residents must properly supervise their children, their children’s friends and children of their visitors so that no nuisance, damage or loss would be caused to any occupant, unit or the common property. In addition, the new rules banned the use of quad bikes, skateboards, bicycles and tricycles on common property.

If a complex has a swimming pool, extra caution must be exercised.

Not only must a rule be included to make it mandatory for an adult to supervise and accompany a child to the pool, but there must also be a disclaimer sign at the pool to protect the complex and the Trustees in the event of an incident. Queries have often been raised with me as to whether or not fines can be imposed in the rules around the issue of children’s conduct.  They can be, however, in order to impose fines, the rules must, in the first instance be crystal clear. Furthermore, any rule speaking to fines must provide a sub clause wherein it provides the owner being fined with the right to be heard. The amount of the fine should also be stipulated in the rules, with the proviso that the amounts must be reasonable.

The story of Len and Lisa Cohen ends well in that after Len secured his place on the Board of Trustees, the rules were amended to rein in the children at the scheme. Apparently, the parents were also silenced after receiving notification of possible fines. There is inevitably one safe bet in a Community Scheme. Where you hit owners’ pockets, there is always an overwhelming shift in attitude. Finally, should any dispute around this topic be taken to the Community Schemes Ombud Service, the applicant will be required to provide evidence of the behaviour. It also makes for a stronger case to have more than one person complaining. Once again, this issue around children’s behaviour highlights the fact that communal living is all about consideration, balance and communication.

Marina Constas

Director, BBM Attorneys

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