Enclosing of balconies

Q: What are the requirements for enclosing balconies in our building?

A: Acknowledgement: Property 24

After the infamous 3 Ps – pets, pests and parking – and exclusive use areas, balcony and patio enclosures appear to be the most troublesome subject in Sectional Title.
A balcony / patio, says ST expert Bob Gauld, can be one of many things:
- It can be part of the owner’s section.
- It can be non-exclusive common property.
- It can be exclusive use of common property, granted and registered under section 27 of the 1986 Sectional Titles Act.
- It can be exclusive use of common property, granted under the rules after October 1997 as described in section 27A of the current Act
- It can be exclusive use of common property granted under the rules of the 1971 Act.
And, before an owner or a body corporate can even consider an application to enclose a balcony, the Sectional Title plan approved by the Surveyor General and the Rules filed with the Registrar of Deeds will need to be consulted to determine its status.
Gauld notes that the first two categories of balcony / patio are more usual, but that all categories are treated differently and that even the factors common to all of them preclude enclosure authorisation solely by the trustees.
The common factors include:
- The fact that the outer part of the outer walls of the balcony will be beyond the median line of the wall and thus defined in section 5(4) of the Act as common property.
- The possibility that the enclosure of the balcony is a change of use and subject to section 44(1)(g) of the Act.
- Repair and maintenance issues that must be addressed. There are many cases on record of enclosures interfering with the flow of rainwater, sometimes with serious consequences for other owners.
- Consideration about how enclosures will affect the harmonious appearance of the scheme.

A balcony that forms part of a section is the least difficult to handle as it does not require the section to be extended. However, many balconies that are included in the area of the section are not included in the ‘bulk’ or ‘FAR’ (floor to area ratio) of the building. In such cases and in spite of the Sectional Title requirements having been met, the local authority may decline consent.
If the enclosure changes the use to which the balcony is put, the written consent of all the other owners will be required. If a new room, such as a bedroom, is created, it will be subject to local authority planning requirements regarding room size, ceiling heights and ventilation.
In addition to these local authority considerations, the enclosure of a balcony / patio that comprise part of the common property, either with or without exclusive use, will almost certainly be seen as an extension of the section and subject to the provisions of Section 24 of the Act.
As to harmonious appearance. Gauld points out that management rule 68(1) provides 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’.
’But while this is easy to say, it is very hard to interpret. Is something inharmonious aesthetically displeasing, or is it just different? If 19 front doors are painted in gaudy, garish stripes and one door is natural wood, which is inharmonious? Owners can, therefore, expect some inharmonious debate about any proposed enclosures!’

Harmonious Appearance

Q: How does our body corporate decide what is harmonious in appearance and what is not when giving permission for alterations and improvements?

A: Acknowledgement: Property 24

Most residential sectional schemes consist of sections built to a higher density than is usually found in freehold areas, and need the visual control that is usually achieved by designing around a particular style and colour theme.
Carefully followed, says Sectional Title expert Bob Gauld, this avoids the “little boxes” impression, creating instead a harmonious and pleasing appearance. It is in the interests of such visual harmony that management rule 68(1)(iv) was written, and although it does not specifically refer to common property, the intention is clear:

68(1)(iv) ‘An owner shall not do anything to his section or exclusive use area which is likely to prejudice the harmonious appearance of the building’.

How do we define ‘harmonious appearance’? Some people try to equate harmony with aesthetics and often go to great trouble and expense to prove their point.
This is, however, not what is intended by the rule. Says Gauld: “If we look at a scheme of 10 sections built in a single row, nine of which have bright red and purple front doors and one section has a white door, the white door would be considered inharmonious, even though aesthetically it may be more pleasing.”
And the harmonious appearance rule is absolute. It does not even allow the owners by unanimous resolution to sanction anything inharmonious.
Among the most common violations of this rule are gates, awnings and shade-cloth that do not conform to patterns or colours approved by the body corporate. Other examples are windows that have been replaced with sliding doors or steel garage doors that have been replaced by timber doors.
A very common problem affecting many coastal schemes involves individual owners replacing timber window frames with aluminium. Not only is this a violation of the harmonious appearance rule, but it is compounded by the fact that in most schemes the window frames are part of the common property and should not be replaced by section owners.
”These are obvious examples – others are less obvious,” says Gauld. “Consider a high-rise block of flats in which every alternate storey has all the balconies enclosed, the remaining storeys having open balconies. If all the enclosures have been done in the same style, the effect is harmonious. If an owner applied to enclose a balcony on an open-balcony floor this would be considered inharmonious.”
Gauld notes that developers who anticipate the needs of the future body corporate can help avoid many problems. “For example, owners of brand new units will not wait several weeks or even months for the future body corporate to decide on style and colour before installing security gates outside their front doors. The likely result is that the visual harmony of the scheme will be compromised, unless the developer had the foresight to amend the rules of the scheme, before establishment, to specify colours and patterns of security gates.”

Levies – withholding payment

Q: The Trustees have not replied to me on many issues that I am concerned about in the running of the complex, for example: maintenance of the building, financial accounts and books of record and certain decisions that I do not believe they are entitled to make. Can I stop paying my levies in protest?

A: Definitely not!  You are not entitled in law to withhold your levies under any circumstances.  If you have a dispute with the Body Corporate, represented by the Trustees, you have legal remedies, being to approach a court, or invoke Regulation 71 of the Sectional Titles Act 95 of 1986, which is the Arbitration provision.

Meetings

Q: I believe that a meeting must be called at our Body Corporate urgently to discuss certain issues, but only trustees can call meetings. They refuse to do so – what can I do?

A: If you have the support of other owners who make up 25% of the total of the participation quotas of the sections, you may, in writing, request that the trustees convene a special meeting.  If the trustees fail to call a meeting within fourteen days, those owners may then call the meeting.

Parking

Q: We have a huge shortage of parking in our complex and we currently operate on a first come first serve basis when it comes to the extra bays. How can we allocate these bays on a permanent basis and how can we create additional parking on the common property? We do have some open areas.

A: Acknowledgement: Property 24

Can there ever be enough parking in a sectional scheme? Probably not, but while creating extra parking facilities is fairly simple; allocating them to individual owners is far more complicated.
In most schemes, the creation of extra parking can be achieved by demarcating bays on existing driveways or other paved areas , or making a ‘non-luxurious’ improvement to common property. That means that before implementing the proposed improvement, the trustees will have follow the provisions of prescribed management rule 33 and consult the members of the body corporate.
However, says sectional title expert Bob Gauld, if the proposed improvement will require an area of garden to be paved and the removal of trees, the likelihood of objections from members will increase, as will the temperature at the special general meeting that will follow!
’And if the proposal includes the installation of shade netting, the erection of carports or even the construction of full garages, the improvement may be seen as a luxurious improvement, requiring a unanimous resolution of the members of the body corporate.’
Gauld also notes that, once created, the new bays will be part of the common property and will be available for general use. ‘As they will not be designated as exclusive use areas, their creation will not prevent a free-for-all scramble for the better or bigger bays and will not guarantee the availability of an extra bay for all residents at all times.’
Consequently, the body corporate may want to allocate the new bays to owners as Exclusive Use Areas (EUA’s) – and it may do so by means of a 100 percent resolution of its members. EUA’s can be created either under the rules of the scheme or registered as real rights.
However, bodies corporate that choose to create the new EUA’s under the rules as prescribed by section 27A of the Sectional Titles Act, should appoint a specialist attorney to draft the rule. The rule should include a convertibility option that will grant owners a right to convert the exclusive use to a registered real right under section 27 of the Act.
Bodies corporate choosing to register the EUA’s will also have to appoint a land surveyor to prepare a plan for submission to the Surveyor General and a conveyancer to register it with the Registrar of Deeds.
Alternatively, and a good option if the body corporate cannot get the appropriate resolution to create EUA’s, the bays may be leased to members. Providing that the lease agreement is for a period of less than 10 years, an ordinary resolution of the members will usually be sufficient. Section 17(1) read in conjunction with the definitions in section 1 of the Sectional Titles Act states that leases of 10 years or more require a unanimous resolution.
Any agreement to rent bays must contain a clause that the lease will terminate when the lessee ceases to be a member of the body corporate, thus releasing the bay for reallocation. A prudent body corporate will employ a specialised property attorney to draft a suitable lease document.
In most sectional schemes, parking is a very contentious issue, and trustees must be guided by the wishes of the body corporate members before renting spare bays or any part of the common property.
They should also exercise extreme caution before having any vehicle (or trailer, boat or caravan) removed or towed from the common property, and certainly should not do so without first having issued several written warnings.
At the same time, though, residents of sectional schemes need to be mindful of others’ convenience, as well as prescribed conduct rule 3:
’3(1) No owner or occupier shall park or stand any vehicle upon the common property, or permit or allow any vehicle to be parked or stood upon the common property, without the consent of the trustees in writing.
(2) The trustees may cause to be removed or towed away, at the risk and expense of the owner of the vehicle, any vehicle parked, standing or abandoned on the common property without the trustees’ consent.’

Pets

Q: The following rule regarding pets have been approved at our last AGM: Any person who finds that a pet in the complex is a nuisance to him/her can complain. If the owner/tenant receives 3 such written warnings then owner/tenant will be requested to remove the pet. Please advise on what I can do as I have received a first warning for my wandering cat.

A: The prescribed rules state that no pets are allowed unless written the trustees grant permission. When granting permission any reasonable condition may be part of the permission. It goes on to say that if any of the conditions are breached, permission will be withdrawn

Cats are wanderers particularly if they have not been neutered. You must make an arrangement to keep your cat confined to your unit as it is obviously causing a nuisance to other residents

The trustees may not refuse permission to keep pets but they should attach conditions to their consent. I am afraid that they are fully within their rights to respond to complaints from other residents 

Spa baths

Q: I would love to install a spa bath in my section. I have been informed that I can do this as it is within my section, and does not affect common property. Is this true?

A: Be really careful with this – you are not entitled to do anything in your section which will cause a nuisance to any other owner.  A spa bath has noise implications, and in the past, an arbitrator has ordered that the mechanism for the bath be removed, as it created an unreasonable amount of noise to the unit directly underneath the unit where the bath was installed.

Special levies

Q: The trustees have just gone ahead and decided that the building is being painted. A special levy has been raised – I cannot afford it – can they make that decision alone?

A: The trustees have delegated powers in terms of the Sectional Titles Act, and have the power to decide on issues relating to the maintenance of the building.  In fact this is a statutory obligation, and if they fail to ensure that the building is maintained, they may face an arbitration hearing.  Obviously the decision which they take must be reasonable i.e.: they should have obtained quotes properly, etc.  They are entitled to raise a special levy.

Tenants

Q: We have a major problem with tenants in our complex. Many tenants simply do as they please with absolutely no regard to the rules of the complex. Can we evict them?

A: The answer is no.  There is no legal relationship between tenants and the Body Corporate.  The owner is directly responsible to ensure that his lessee complies with the rules, and the Body Corporate has recourse against the owner.  In other words, if the matter went to arbitration, the owner would be the Respondent in the matter.  The Body Corporate should place pressure on the owner at all times to in turn reprimand a tenant who is not adhering to the provisions of the Sectional Titles Act.

Trustee

Q: I am a trustee, and I am feeling increasingly vulnerable about my position. We have owners who threaten to take legal action against us personally all the time. Where do we stand as trustees?

A: The law recognises that the role of a trustee is not an easy one –there is no remuneration involved, and the job is often carried out over and above other daily commitments.  The trustees are therefore indemnified against claims unless the trustee acted dishonestly, or grossly negligently.  The definition of gross negligence could be the subject of a small book, save to say that the trustees must really have acted extremely negligently.

Q: Our Managing Agent says that it is legal for him to be a Trustee. This seems strange – is he correct?

A: An amendment to Regulation 5 of the Sectional Titles Act now allows a Managing Agent or an employee of the Managing Agent to be a trustee, as long as he is an owner of a unit in the building.  This amendment is open to criticism as there may be a conflict of interest where a Managing Agent or his employee is wearing two hats.