Changes to nature of scheme require consent – John Mpiti – Express

John Mpiti

Question:

I heard that one of the owners in our sectional title scheme is planning to convert her garage into a hair salon, which will compel her to park her car in the public parking area.

I am not happy about this at all.

Not only will it increase the influx of unknown persons in the complex, it will also reduce the limited public parking spaces we have.

Can she go ahead with her plan to convert her garage? just go ahead and change her garage?

Answer:

Sectional title schemes are essentially communities that have joined together with a specific intent. Any change to the basic nature of the scheme may therefore defeat the purpose of the scheme, unless such a change is consented to by all.

This position was confirmed in the recent court case of Mineur v Baydunes Body Corporate and Others where, in a quite similar set of facts, the question was raised whether or not a sectional title owner could convert a garage into a residential space.

In assessing the legal position, the court looked at Section 13(1)(g) of the Sectional Titles Schemes Management Act 8 of 2011.

It clearly states that, “when the purpose for which a section or exclusive use area is intended to be used is shown expressly or by implication on or by registered sectional plan, an owner must not use nor permit such section or exclusive use area to be used for any other purpose than indicated on the sectional plan.

“The only instance in which an owner may use his unit for ano­ther purpose as indicated on the sectional plan, is if the written consent of all owners is obtained that such section or exclusive use area may be used for the purpose as consented to.” [our emphasis]

Accordingly, the court found that the objection of one unit owner in the sectional scheme to the conversion of garages into residential spaces was enough to render the resolution taken by the majority of the unit owners in the sectional scheme as unlawful and invalid.

As it created a lack of parking for vehicles in an already confined area, the conversion of garages into residential spaces did not only have an impact on the unit owner, but also on the entire sectional title scheme.

Additionally, the building plans of every sectional title scheme must meet certain parking requirements imposed on the unit by the local municipality to ensure safety and convenience for the residents in the scheme.

However, it does not mean that a unit owner will never be able to make alterations to their unit.

Basic alterations can usually be dealt with by the rules of the scheme and be approved by the body corporate.

For changes where the nature of the unit or scheme is altered, however, it will be important to obtain the consent of all the members of the sectional title scheme by proving that your alteration will not have a negative impact on the common property in the sectional title.

In your case, it does appear that the conversion of the garage into a hair salon could have an impact on the other unit owners, community and the common property of the scheme.

Our recommendation is to discuss your concerns with the body corporate so that the issue can be addressed with the relevant unit owner in the light of the abovementioned court case.

Should they fail to do this, or should the unit owner continue with the conversion, consider approaching your attorney for assistance.

– John Mpiti, candidate attorney, Phatshoane Henney Attorneys

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