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Who Is Liable For Maintenance & Repairs Of A Sectional Title Scheme's Walls & Foundations?


Who Is Liable For Maintenance & Repairs Of A Sectional Title Scheme's Walls & Foundations?

When determining maintenance and repair responsibilities in a sectional title scheme development, one need to first distinguish between common property vis-à-vis sections in terms of the Sectional Titles Schemes Management Act 8 of 2011.

Many sectional title owners are under the impression that their body corporate is automatically responsible to arrange and pay for the repair or damage to their section if it results from some defect or failure in the common property.

Many residential developments in South Africa are established in terms of South Africa's sectional title scheme legislation. Residents will purchase and own their properties in sectional title developments much like residents in traditional neighbourhoods with full-title properties. However, sectional title schemes are different as it is a group-owned complex or development where the local authorities are not responsible for the maintenance of the common infrastructure. The applicable legislation thus had to provide for this and has done so by dividing the property of such group-owned complexes into different categories.

The Sectional Titles Schemes Management Act 8 of 2011 ("STSM Act") is the most important piece of legislation which regulates the responsibilities of the owners vis-à-vis their body corporate. The act also requires a body corporate to establish a reserve fund in addition to the administrative fund, 'to cover the cost of future maintenance and repair of common property' (see s 3(1)(b) of the Act).

Owners are responsible to maintain their own properties, known as "sections " - i.e. for any internal repairs and maintenance, painting, plumbing within the section.

The body corporate on the other hand is responsible to maintain the common property and to keep it in a state of good and serviceable repair.

What is common property?

"Common property" is defined in the STMS Act as:

(a) the land included in a scheme and

(b) the part or parts of buildings which are not included in a section - i.e. the outer shell, the roof and the foundations of the building that are intended to serve all the sectional owners.

In other words, common property includes the land underneath a section, and thus expands the body corporate's maintenance obligations. Common property can be identified as gardens and walkways, driveways, passages, lifts, courtyards, swimming pools, play areas for children, and shared parking facilities.

  • Maintenance of common property:

Owners are not responsible for the maintenance of the exterior of their unit nor the maintenance of pipes, wires, cables and ducts in a section that also serve any other section or the common property. However, in situations where a hot water system is situated in or on the common property, the owner of the section who uses the hot water from that system is responsible for any damages caused in that area of the property.

If you own a freestanding housing unit in a sectional title scheme, the inner half of the walls will be part of the section, while the outer half of the walls are common property. Up to the middle of the ceiling board is part of the section, and the roof is common property.

The body corporate must maintain all the common property and "keep it in a state of good and serviceable repair". This is covered by the levies paid by the owners. Levies also cover garden services, waste removal, cleaning, and pool services. The maintenance of the common property can never be turned over by the trustees (body corporate) to the individual owners as chaos would ensue if owners were to assume individual responsibility for painting the roof and walls over and around their own sections, for example, or for maintaining their own parts of a common garden.

For one thing, the scheme would rapidly lose its uniformity of appearance and it is likely that all units would lose value as a result. In addition, it would be extremely difficult for the trustees to deal with owners who did maintenance less often than others, or those who made a worse job of it than others.

All trees on common property to be maintained/removed by the body corporate.

What is a section?

The STSM Act states that a section "means a section shown as such on a sectional plan". This is a very limited definition and accordingly greatly limits the owner's maintenance obligations.

It is important to be able to establish exactly where a section stops and where the common property starts. This can avoid unnecessary disputes between owners and their body corporates as to who is liable for damage to something like, for example, the foundations of a section (or unit as it is commonly referred to in complexes).

The STSM Act is not particularly helpful in this regard. However, section 5(4) of the Sectional Titles Act 95 of 1986 assists with this inquiry. This section states that the common boundary between any section and another section or common property shall be the median line of the dividing floor, wall or the middle of the ceiling board that separates the ceiling cavity from the rooms below.

Simply put, an owner will be responsible for internal repairs and maintenance - which will include painting, plumbing within the section, plastering and cleaning.

The outside of a section, including the foundations and soil underneath the section, will be the body corporate's responsibility.

Owners have the responsibility of maintaining their own section, because a lack of maintenance could negatively affect another section.

Doors and windows are not always positioned exactly in the middle of a wall. Amendments introduced to the STA in 2011 determine that the median (middle) line is deemed to pass through the centre of any door/window or other structure that divides two sections or a section and the common property. All internal doors are to be repaired and maintained by the owner.

The owner is therefor responsible for the costs and remedy of all damages to his section, however, if the damage is caused because of an external factor, then the owner may have a claim against another owner and or the body corporate.

For example:

  • an owner's leaking shower causes damage to a section below, the owner must have his shower repaired, and
  • where a leaking roof causes damage to sections below, the body corporate must repair the roof.
  • while maintenance and repairs to windows and doors in exterior walls should however be treated as 50/50 responsibility between owners and the body corporate.
  • when two apartments have serious damp problems on a common interior wall and the source of the problem is unknown, the owners are responsible for locating the source and that the body corporate need only get involved if it can be proven that the root of the problem lies within common property.

What is an exclusive use area?

It is important to note that the STSM Act also provides for "exclusive use areas". These are areas which form part of the common property, but which are for the exclusive use by the owner or owners of one or more sections - such as a garden, garage, patios, balconies, parking area or a driveway garden.

  • Maintenance of an exclusive use area:

The responsibility to maintain or repair such areas is that of the body corporate while the STSM Act requires owner of an exclusive use area to bear the financial cost of such maintenance and repair. The owner should also ensure that the area is kept in a neat and clean condition.

For example:

  • a pipe traversing the common property bursts in an exclusive use area, the body corporate cannot hold the owner responsible for the repairs. The owner of the exclusive use area will only be responsible for the repair of the pipe if he or she caused the damage.
  • trees in exclusive use areas to be maintained by the owner enjoying the rights to that area, but removal (as the roots are actually in common property) should, in effect, be removed by the body corporate.

Who Is Liable For Ensuing Damage?

Whilst the STSM Act apportions the legal responsibility for maintenance and repair of the common property to the body corporate, and maintenance and repair of sections to their owners, it does not deal with a body corporate's responsibility for consequential (ensuing) damage. No automatic liability follows.

Since the STSMA does not expressly deal with the question of liability to pay for consequential damage to a section that is caused by defects arising from the common property, an owner will have to look to the common law remedies if the body corporate is not willing to pay for the cost of repair.

An example of this would be rising damp because of a defect in common property walls or floors.

The common law requirements for the recovery of damages (i.e., pure economic loss) will have to be applied to hold the body corporate liable for such consequential damage. An owner may therefore request the body corporate to pay for the damages caused by defects arising out of the common property, but if the body corporate refuses to pay, the owner must then proceed to either enforce their common law rights or consider filing an application with the Community Schemes Ombud against the body corporate for an order requiring them to have the repairs and maintenance carried out.

In this regard, the Community Schemes Ombud Service Act 9 of 2011 (CSOS) finds application. Section 38 of CSOS allows an owner to approach the Ombud with an application if such person is a party to or affected materially by a dispute.

Any consequential damage caused because of either a leaking or a burst geyser is covered under the insurance policy. If a geyser bursts, the owner may claim from the insurer, and will be liable for the excess, which may be determined on the age of the geyser (on a sliding scale). Arguments often ensue regarding excesses, but the answer is that if a member is claiming, he's likely due to pay an excess.

Author ESI Attorneys / STBB Attorneys / Stonewood Property Management
Published 25 Aug 2023 / Views -
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