Property Law and Sectional Title

 

 

Yes, individual section owners are solely responsible for maintaining their own sections internally. However, there are specific instances where an owner may be responsible for elements that are technically common property:

  • Utility connections serving only one section: If pipes, wires, or ducts are located within a section and supply a utility service exclusively to that section, the owner is responsible for their maintenance.
  • Hot water systems (geysers): The owner of a section is responsible for the maintenance of the hot water system (e.g., geyser) that supplies their section, regardless of where it is located within the scheme. If a system supplies multiple sections, those owners share the responsibility and costs.   
  • Exclusive Use Areas (EUAs): While EUAs are common property, the owner who has the exclusive right of use is typically responsible for keeping the area neat and clean and often contributes financially towards its maintenance and repair as per the scheme's rules or registered conditions.

Generally, no. Owners cannot make alterations or improvements to common property without the Body Corporate's consent, usually obtained via an ordinary resolution of members, subject to reasonable conditions. Any such alterations must also comply with relevant municipal bylaws and building regulations. Owners should consult the scheme's management and conduct rules and seek Body Corporate approval before undertaking any work that affects common property or structural elements.

The registered sectional plan for your scheme is the definitive legal document. It visually depicts the boundaries of each section and the common property. If you are unsure, obtain a copy of your scheme's sectional plan from the Deeds Registry Office or consult with the Body Corporate or a legal professional.

The cost of maintaining common property is primarily funded through the levies paid by the owners. The Body Corporate must ensure that levies are sufficient to cover these costs. The STSMA also mandates the establishment of a reserve fund, separate from the administrative fund, specifically for unforeseen future maintenance and repairs of major capital items.   
 

Common property includes all parts of the sectional title scheme that are not included within the boundaries of individual sections. This broadly means the land of the scheme and any parts of the building(s) that are not private sections. Examples include the foundations, roofs, external walls (in many cases), gardens, swimming pools, clubhouses, lifts, stairwells, security systems, and shared utility infrastructure like main pipes and electrical wiring. The definitive guide is always the registered sectional plan, which clearly delineates common property from individual sections.  

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Maintenance of Common Property

Maintenance of Common Property in South African Sectional Title Schemes

In South Africa's sectional title schemes, the effective management and maintenance of common property are crucial for preserving property values and fostering harmonious community living. At VDM Attorneys, we provide expert legal guidance to Body Corporates, trustees, and individual owners on their rights and responsibilities regarding common property.
 

Common property in sectional titles legally defines areas not part of individual sections. This includes the land, exterior structures like roofs and walls, shared amenities such as gardens and pools, access areas like driveways and staircases, and communal systems like security and elevators. Essentially, it's all property within the scheme boundaries intended for the shared use and benefit of all owners.

What Constitutes Common Property?

As defined by Section 1 of the Sectional Titles Schemes Management Act 8 of 2011 (STSMA), "common property" in relation to a scheme means:

  • The land included in the scheme.
  • Such parts of the building or buildings as are not included in a section.
  • Land referred to in Section 5(1)(d) of the STSMA and Section 26 of the Sectional Titles Act 95 of 1986 (STA).
  • Simply put, common property encompasses all parts of the scheme that are not privately owned sections. This typically includes:
    • Land The land on which the scheme is situated.
    • Structural Elements Foundations, roofs, external walls of sections (where applicable), basements, attics.
    • Shared Facilities: Gardens, walkways, driveways, parking bays (if not designated as sections or exclusive use areas), stairwells, lifts, swimming pools, clubhouses, play aeas, communal utility rooms (foyers, storerooms, laundromats), boundary walls, and entrance gates.
    • Utility Infrastructure (largely): Pipe, wires, cables, ducts, plant, machinery, fixtures, fittings, and equipment used in connection with the common property and sections, as well as separate meters.
  • The registered sectional plan for the scheme is the definitive document, clearly outlining the boundaries of each section and the common property. Everything outside the solid lines defining a section on the sectional plan is considered common property. This distinction is paramount in determining maintenance responsibilities.

Who is Responsible for Maintenance?

Understanding who maintains what is fundamental:

  • The Body Corporate's Primary Responsibility The STSMA places the primary responsibility for maintaining common property squarely on the Body Corporate. This includes the obligation to keep all common property in a state of good and serviceable repair (Section 3(1)(l) of the STSMA). The Body Corporate may also acquire movable assets (e.g., pool furniture, generators, gym equipment) for the benefit of owners or in connection with common property enjoyment/protection; these assets also fall under the Body Corporate's maintenance purview.
  • Section Owners' Responsibility Individual owners are solely responsible for the maintenance of their own sections.
  • Shared Responsibilities & Complexities (Utility Services) While most utility infrastructure (pipes, wires, cables, ducts, communal plant, machinery, etc.) is the Body Corporate's responsibility, there are critical exceptions:
    • Solely Serving a Section If pipes, wires, cables, or ducts are located within a section and supply a utility service exclusively to that section, the owner of that section is responsible for their maintenance.
    • Hot Water Systems The system supplying hot water to a section (e.g., a geyser) must be maintained by the owner of that section, regardless of its physical location. If a system supplies more than one section, the owners of those sections share the responsibility and costs.
    • The Body Corporate is also responsible for maintaining utility services like water, gas, electricity, air conditioning, telephone, internet, sewerage, drainage, and waste disposal systems where they serve more than one section or the common property.

The Importance of the Maintenance Plan and Funding

The STSMA mandates proactive maintenance planning and adequate funding:

  • 10-Year Maintenance Plan - The Body Corporate is legally required to prepare and maintain a comprehensive 10-year maintenance plan. This plan must outline all anticipated major maintenance and repairs for the common property.
  • Annual Review and Presentation - This plan must be updated annually and presented to owners at the Annual General Meeting (AGM).
  • Funding through Levies and Reserve Fund - The cost of maintaining common property is primarily covered by the levies paid by owners. These levies must be adjusted periodically to ensure sufficient funds for ongoing maintenance, necessary repairs, and potential renovations. The Body Corporate is also required to establish a reserve fund to cover larger, unforeseen maintenance and repair expenses.

Legal Framework and Key Distinctions

The Sectional Titles Schemes Management Act 8 of 2011 (STSMA) is the cornerstone legislation governing the management and maintenance of sectional title schemes. It works in conjunction with the Sectional Titles Act 95 of 1986 (STA) and the Prescribed Management Rules (PMRs) and Prescribed Conduct Rules (PCRs) which further detail responsibilities and scheme operations.

A crucial distinction is drawn between maintenance and improvements:

  • Maintenance - Keeping the common property in its original state of good and serviceable repair (e.g., repainting a wall, fixing a broken gate).
  • Improvements - Adding to or upgrading the common property beyond its original state (e.g., installing a new recreational facility, upgrading security systems). These are authorised differently by Body Corporate resolutions, with improvements often requiring a special resolution.

Owner Obligations Regarding Common Property (Conduct Rules)

While the Body Corporate maintains common property, owners also have responsibilities regarding its use as per the scheme's conduct rules. These typically include:

  • Not causing a nuisance or unreasonably interfering with others' use of common property.
  • Not making alterations to their section that impair the building's stability or the enjoyment of other sections or common property.
  • Not making improvements or alterations on common property without the Body Corporate's consent (usually by ordinary resolution, with conditions).
  • Seeking written consent from Trustees for actions such as keeping animals, parking vehicles in unassigned areas, installing additional security devices on common property, or altering any part of common property.

VDM Attorneys - Your Trusted Partner in Sectional Title Matters

Navigating the intricacies of common property maintenance can be complex. From interpreting sectional plans and legal definitions to resolving disputes over responsibilities and ensuring compliance with the STSMA, VDM Attorneys offers comprehensive legal services. We assist Body Corporates in establishing robust maintenance plans and levy structures, and advise owners on their rights and obligations.

For expert advice on common property maintenance and all other sectional title matters, contact VDM Attorneys today.