Distinguishing between Luxurious and Non-Luxurious Improvements to Common Property – Jennifer Paddock

want vs need

In a recent post I dealt with how luxurious and non-luxurious improvements to the common property need to be authorized. In this post I look at how to distinguish between luxurious and non-luxurious improvements.

Why is the distinction important? Because luxurious improvements to common property require much higher consent levels than non-luxurious improvements, which can potentially be effected without any active owner consent.

Prescribed Management Rule 33, which deals with these improvements, provides no guidelines whatsoever as to what type of improvement is to be considered a luxury and what is not.

Prof. Graham Paddock in his Sectional Title Survival Manual and Prof. CG van der Merwe in his work Sectional Titles, Share Block and Time-Sharing, refer to a well-known distinction in the South African law of property which regards any improvement which is necessary and useful as non-luxurious, and any improvement which is desirable but not necessary, as luxurious.

So here is the question to ask when deciding whether a suggested improvement to the common property is non-luxurious or luxurious in nature:

is the improvement useful

Of course the answer to whether the improvement is necessary and useful will depend on the persons answering the question. Take the installation of a lift for example. The sectional owners of a 5 storey building in Clifton may believe that a lift is necessary and useful and not merely desirable, whilst the sectional owners of a 5 storey building in a less affluent area may agree that it is merely desirable and not necessary. Subjectivity and value judgments definitely play a part in determining the answer.

If the trustees, who usually initiate any improvement processes, feel that there will be dissention amongst owners as to whether the improvement they have in mind will be luxurious or non-luxurious in nature we recommend that they call a general meeting at which to ask for a direction from the body corporate as to how to classify the improvement, thereby instructing them which process and authorisations are required. A direction can be given by a simple majority of owners at a properly convened general meeting.

 

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