This week our panel assists a reader who has been fined for alterations he made to his unit in a sectional title complex.
Before starting these alterations he submitted the plans to the municipality and the trustees of the body corporate. The changes he wished to effect were not only aesthetic, but also had practical implications to prevent rainwater from flooding the interior.
The building took two months to complete. About a month after completion he received a communication from the trustees stating that the glass doors installed did not meet with their approval.
Admittedly, the reader says the specifications had to be changed during installation due to manufacturing constraints. When he received this communication, he submitted the information from the installer to the trustees.
Another month later, the reader was told that the revised specifications were not acceptable and that a monthly fine of R1 000 would be imposed until such time as the required changes were effected.
In addition, the trustees informed him that had he submitted a drawing of the installed doors, it would have been rejected. However, he had no idea that this should have been done.
Understandably, the reader is unhappy with the situation. To make the required changes will mean destroying a portion of the garden he re-established as well as ruining interior tiles.
He therefore questions whether the fine could be imposed.
An important fact to consider is that the reader submitted plans to the trustees before starting with the alterations, says Brian Kinnear, principal of Fresh Lifestyle Properties in East London.
“We can accept that these plans were approved as he then began the alterations and met no resistance.”
Kinnear says the reader is clearly of the opinion that since everything happened in plain sight, the trustees had plenty of opportunity to raise their concerns while the alterations were underway.
Unfortunately, says Kinnear, one of the prescribed management rules states that an owner shall not do anything to his section or exclusive use area which is likely to prejudice the harmonious appearance of the building.
“This is probably the provision the body corporate is now relying on to force the reader to make the necessary changes.”
Whether the trustees are entitled to impose a fine will depend on whether they have been granted the necessary authority to do this, says Kinnear.
“Normally such an authority would be contained in the scheme’s rules.”
Grant Berndt from Abdo & Abdo Attorneys in East London says there are appropriate remedies under the standard rules relating to sectional titles, such as preventing the offending owner from participating at meetings.
“The trustees can also effect changes and recover the costs from the owner, should he or she not adhere to the demand for repairs.”
Berndt says the reader may choose to oppose any disciplinary action by stating that there was tacit consent for him to make the changes to the original specifications.
“However, the trustees may argue that since the plans were originally submitted in writing any substantial changes had to be formally submitted for approval.”
In addition to this, says Berndt, the standard conduct rules prescribe that any alterations or additions to the common property may only be made with the prior written consent of the trustees.
“Taking these factors into account, an argument for tacit approval will most likely not hold water.”
According to Berndt, this may be an instance where the parties wish to pursue arbitration to resolve the dispute, if indeed a dispute is declared.
