Maintenance and Sectional Titles: Who must pay? – Tatham Wilkes

An issue that can often raise the blood pressure of sectional title owners, is the question surrounding maintenance within a sectional title scheme, particularly where maintenance costs are going to cost an arm and a leg. So where does the responsibility of the sectional title owner for maintenance begin and end?

To answer this question, one must first recognize that there are different types (or classes) of property when dealing with sectional title schemes. They are common property, sections and parts of the common property that are subject to rights of exclusive use by one or more owners in the scheme.

The Sectional Titles Act dictates that the Body Corporate is responsible for the maintenance of the common property. This is property not forming part of a section and includes the land in the scheme. The Body Corporate must see to it that the common property is maintained, repaired when necessary and foot the bill for the repairs. The common property can include, inter alia, elevators, the outside of the building, roof, common gardens and parking bays, driveways, security systems, street lights, communal passages and staircases, and shared swimming pools. An exception can exist where it comes to geysers. Often a geyser is situated above the ceiling, and can then be seen to form part of the “common property”, yet in this instance, the owner often remains responsible for the upkeep and repair and not the Body Corporate.

The maintenance of sections is the sole responsibility of the owner. A section extends from the centre line (median line) of the walls, floors and ceilings, this area is the property of the owner and with ownership of said area follows the responsibility for maintenance and repair. Keep in mind that shirking this responsibility may have a negative effect on another section. Should there for example, be a leak in your section and the water causes damage to a section below or adjacent, you may face a claim for damage from the owner of the section below or adjacent and not the Body Corporate.

There is a noteworthy exception to the maintenance of a section. The Body Corporate is responsible for maintenance of “pipes, wires, cables and ducts” in a section that also serve any other section or the common property.

The third type of property is the exclusive use areas. As the name suggests, these areas remain common property and the responsibility for maintenance rests with the Body Corporate, but the Sectional Titles Act states that costs associated with these areas must be recovered from the owner or owners who enjoy the rights of exclusive use to the said areas. On the one hand the Body Corporate must see to the maintenance of these areas, but the owner or owners are financially responsible. It is common practice that the owner who is financially responsible for this area, maintain the area with the result that it is unnecessary for the Body Corporate to spend money on this area and then still recover such from the owner.

Although the question of maintenance appears straightforward, disputes are common and frequent. A simple example is where a leak in section A causes damage to section B or the common property and the owner of A does not repair the leak. May owner B or the Body Corporate take matters in their own hands? How will they gain entry without permission from owner A? If the Body Corporate or owner B repairs the leak and owner A refuses to reimburse the Body Corporate or owner B, what recourse can be followed?

Because of the financial and legal implications of maintenance and the potential complexity of a dispute it is advisable that legal advice be obtained in the event of such a dispute to help determine the allocation of responsibility and merits of your claim.

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