Withholding a levy clearance certificate until plans are approved – Graham Paddock

AN OWNER sells a unit. The trustees know that some of the owner’s building works are not approved. These may be in an exclusive use area or on the common property. They may also be unauthorised lofts, roof decks or other alterations to the exterior of a section. Can the trustees or managing agent issue a levy clearance certificate, or must they refuse to do so until the situation is “legalised”? What can happen if they refuse to issue the certificate?

These questions often arise. They may come from a seller or a buyer who wants to get the transfer registered without delay. They might be asked by trustees who want to ensure that all building alterations are approved or that owners pay contributions based on the correct floor areas.

And there are often other subsidiary questions. What other approvals and/or plan approvals are required? Is the unapproved building an extension of the sections’ floor area? Is a body corporate resolution required? Is it a type of structure on the common property that is subject to exclusive use rights elsewhere in the scheme?

In terms of section 3(1)(p) of the Sectional Titles Schemes Management Act, one of the body corporate’s functions is: to ensure compliance with any law relating to the common property or to any improvement of land comprised in the common property.

If the trustees are sure that the buildings are not properly approved, they should:

  1. Establish what plans and approvals are required;
  2. Refuse to issue a levy clearance certificate;
  3. Demand that the owner do what is required to make the property compliant with the law—if the body corporate’s cooperation is required, they should offer to arrange the required meetings;
  4. Where appropriate, approach the local municipality and ask them to inspect and order the owner to either restore the property to its original state or submit and arrange approval of municipal plans—the body corporate cannot do this for the owner, and
  5. If the owner threatens legal action or refuses to start the process of legalising the buildings, apply to the Community Schemes Ombud Service for an order obliging the owner to the necessary work, obtain the necessary approvals and arrange any required registrations.

If you need assistance in drafting a suitable application to CSOS, you can send the details to consulting@paddocks.co.za. If we can help, we will arrange a quotation for assistance.

Graham Paddock is a specialist community schemes attorney, notary and conveyancer. He has been advising clients and teaching students for over 40 years, and was an adjunct professor at UCT for 10 years.

Article reference: Paddocks Press: Volume 17, Issue 4.

This article is published under the Creative Commons Attribution license.

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