We quote Section 37(1)(j) of the Act for your ease of reference:
(1) A body corporate referred to in section 36 shall perform the functions entrusted to it by or under this Act or the rules, and such functions shall include-
(j) Properly to maintain the common property (including elevators) and to keep it in a state of good and serviceable repair”.
There was a recent amendment to the Act with the insertion of a proviso into Section 5(5)(a) which now ensures that the median line is deemed to pass through the centre of any window, door or other structure that divides the two sections or a section and the common property. The implication is that the Body Corporate and owners will always be liable to share the cost of maintaining and repairing windows and window frames, save to the extent that it can be proofed the replacement of a window or window frame is necessitated due to an act of negligence. In terms of Section 37(1)(j) of the Sectional Titles Act, Act 95 of 1986 (hereinafter referred to as the “Act”), the Body Corporate is liable for the maintenance and upkeep of the common property.
Section 5(5)(a) reads as follows:
(5) For the purposes of subsection (3) (d) the boundaries of a section shall be defined-
(a) by reference to the floors, walls and ceilings thereof, or as may be prescribed: Provided that any window, door or other structure which divides a sectio from another section or from common property, shall be considered to form part of such floor, wall or ceiling” [Para. (a) substituted by s. 2 of Act 11 of 2010.]
Izak Du Pisanie