By Anton Kelly
The basic sectional title principle that the body corporate must maintain and repair the common property and owners must maintain and repair their sections is not always followed to the letter. There are a number of circumstances where this is the case but usually, for only one reason – proper procedures were not followed in the past.
One of the most common examples is owners making small alterations that involve common property without obtaining the appropriate, or any, consent. Very often the alteration is either unnoticed or ignored by the trustees. Common examples are part roofing of courtyards, paving, and installing air-conditioning units and skylights.
A second example is the many modern sectional title schemes that consist of free-standing, single section buildings. It makes sense to some that in these schemes owners can maintain the exterior their own houses, change the paint colour, add rooms and erect perimeter walls and fences, and so on. And often the trustees and rules encourage owner maintenance.
In the first example, it’s pretty clear that the small alteration remains the property of the owner, it does not become part of the common property simply because it has been added to the common property. It makes sense then that they maintain the alteration. Even if the alteration is properly authorised, the consent should be conditional on the owner looking after the item.
The second example is much more complicated. It might make sense in some schemes for owners to do the common property maintenance on “their” buildings. The questions are, how to make owner maintenance of common property legal and what can be done to force successor owners to comply with the change their predecessors agreed on?
Who must physically do maintenance?
The body corporate is a non-physical legal entity and so must appoint a real person to perform the maintenance tasks. The trustees perform the functions and exercise the powers of the body corporate, and they may make specific, written delegations of their powers. There is technically no reason the trustees cannot appoint owners to maintain the common property areas of their buildings rather than a maintenance contractor if that is appropriate under the circumstances and in the best interests of the body corporate.
How to make delegations binding on succeeding owners
To make the appointment binding on succeeding owners, the delegation needs to be made as a management rule. The second part of the maintenance is the owners paying only the costs of maintenance they themselves perform, which can be achieved by making a specific kind of rule altering this effect of the participation quota. One needs to remember that the Ombud has to approve the rule amendments before they become enforceable.
What to do if an owner objects
If succeeding owners object to this maintenance task, the body corporate can seek an order by the Community Scheme Ombud Service that the owner accepts this obligation regarding the common property.
There are many potential problems with this alteration of the fundamental nature of sectional title ownership and body corporate scheme management, the most obvious being that the body corporate can only delegate the operation of maintenance, it can never delegate the responsibility. The body corporate will always have to ensure the owners perform the required maintenance when it is necessary and to a satisfactory standard – obviously problematic.
Please contact consulting@paddocks.co.za for a no obligation quotation for advice and drafting of the very complex provisions required.
