Our panel is often asked to deal with a variety of issues relating to sectional title complexes, from problems between neighbours to maintenance of the common property.
This week’s reader question is a classic example of the latter.
The reader explains that he has owned and lived in his unit for some time. Approximately two years ago, he approached the trustees of the complex about paving a dusty and unusable area adjacent to his unit.
He was well aware that the area formed part of the common property and offered to use the contractor responsible for other building work in the complex to ensure its uniform appearance.
The reader accepted the fact that the paving would be to the benefit of the body corporate and other residents, even though he paid for it.
The trustees approved of this action and the managing agent confirmed in writing that he could proceed, which he duly did.
During the past year, some paving outside two other units collapsed (having been laid many years ago by owners long gone) and the body corporate paid for the repair work.
However, the body corporate has subsequently advised that future repairs to collapsed paving in common areas will have to be paid for by the owners of the units lying adjacent to the relevant area.
Understandably, the reader is concerned about the trustees’ approach since the paving he had done is considered common property and does not form part of his unit.
He questions whether such a determination is valid and, if so, how one would impose this responsibility on a new owner if the unit were to be re-sold.
The common property is the portion of a sectional title scheme that does not form part of any section, says Charlotte Vermaak from Chas Everitt in Port Elizabeth.
“Some examples of common property would include driveways, parking bays, garages, swimming pools and walkways.”
Vermaak says the common property is jointly owned by all the section owners and it is controlled by the body corporate.
“In terms of the Sectional Titles Act, the responsibility for the maintenance of any common property lies with the body corporate.”
This entity must arrange for the maintenance to be effected and should also pay for the work that needs to be done, says Vermaak.
Rian du Toit from DTS Attorneys in PE says the Act places an obligation on the body corporate to maintain the common property.
“This obligation makes it clear that the trustees cannot decide that the unit owners are now responsible for the maintenance of certain portions of the common property.”
Du Toit says this includes the paved areas outside their units.
“The fact that the reader offered to have the paving done and paid for it does not change this situation.”
Similarly, says Du Toit, it would not be possible to bind a third-party purchaser of a section to maintaining a common area outside his or her unit.
“The reader should certainly raise this issue with the body corporate and clarify the situation before repairs are actually required. Action now will help to avoid a potentially unpleasant situation in the future.”
