Philip John Badenhorst – Candidate Legal Practitioner
Richards Attorneys
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In a sectional title scheme the obligation to maintain is divided between the owner of a sectional title unit and the body corporate. In this article we will have a look at the obligation to maintain and who is responsible for which maintenance.
The Sectional Titles Schemes Management Act 8 of 2011 (“the Act”) provides that the Body Corporate is responsible for the maintenance of the common property and this includes anything used in connection with the common property. Common property is defined in the Act as the land included in the scheme as shown on a sectional plan, such parts of the building or buildings as are not included in a section as shown on a sectional plan as well as any land bought to extend the common property. Some examples of common property will be the driveway, parking, swimming pool, electric fence etc.
An owner’s duty to maintain is confined to his/her section in terms of section 13(1) of the Act. An exclusive use area is the responsibility of both the body corporate and the owner.
The Act is therefore clear on who is responsible for maintenance on which property in the sectional title scheme. However, a very important exception to the general position is regulation 31 of the Sectional Titles Schemes Management Regulations, 2016. This regulation deals with the maintenance obligation of a water-heating installation also known as a geyser. Although a geyser forms part of the common property and is insured by the body corporate, regulation 31(1) states that it is the owner’s responsibility to maintain, repair and when necessary replace the geyser which serves that owner’s section or exclusive use area. Where a geyser serves sections owned or the exclusive use areas of more than one owner then these costs will be divided between the owners on a pro-rata basis.
What if the owner defaults on his/her obligation to maintain? Regulation 31(2) provides that the body corporate must first send the owner a written demand. If the owner, despite demand, still fails or refuses to carry out work in respect of that member’s section, repair or to maintain the section in a state of good repair and this failure threatens the stability of the common property, safety of the building or otherwise materially prejudices the interest of the body corporate, its members or occupiers of sections, the body corporate must then remedy the member’s failure and recover the costs from that member. In an emergency situation it is not necessary for the body corporate to give a member notice or to demand performance from him/her.