Ashwini Singh
A precarious predicament unfolded in a Durban sectional title scheme recently. Absurdly, a rock was found in the complex’s sewer system, causing a major pipe blockage.
But here is where the real problem arose: a unit owner prevented plumbers from attending to the sewer system by not giving them access to the manhole in his unit where the rock was stuck. Insofar as the complex is concerned, can such selfish actions of a unit owner be entertained in a sectional title scheme setting?
In actuality, the prevention of essential maintenance in a complex is a contravention of South African sectional title law. In particular, Subsection 13(1)(a) of the Sectional Titles Schemes Management Act explicitly states that an owner must give access to his unit for the maintenance by authorised body corporate contractors.
Where an owner refuses to grant access to his unit for body corporate maintenance, said owner can find himself being ordered by the Community Schemes Ombud Service to provide access in terms of Subsection 39(6) of the Act.
So in such a situation, if a unit owner finds himself between a rock and a foul-smelling place, the wise (and legal) move would be to get rid of the rock.
Singh is a Law Academic.
6 Comments
So true. There are many unit owners who don’t follow the law…some trustees even. At my complex, there’s a trustee who gave himself permission to keep a dog! We are no pets. But no one wants to do anything because he a doctor.
If the dog is affecting you (i.e. it keeps entering your section/Exclusive Use Area), then you can approach the CSOS for an order against the owner prohibiting the dog from entering your section or EUA. If the CSOS order is granted and the dog persists in entering your section/EUA, that will result in the owner being held in contempt of the court once enforced. Ideally, the other trustees should have taken action against the offending trustee by removing him from office and seeking an order for the dog’s removal from the scheme via the CSOS. At the end of the day, trustees have a fiduciary obligation to the body corporate they serve, and should not be deviating from their duties.
I have a leaking roof and the trustees are refusing to fix it. I told them it was common property. They still said I had to fix it myself because it is attached to my section and within my eua. Insurance rejected the job because they said it is the body corporate’s job. Can CSOS help?
Typically, the roof of a unit in a sectional title scheme is Common Property. It would be best to confirm this by checking your section’s sectional plans as registered in the Deeds Office. Once you have confirmed that your roof is CP, you can approach the CSOS for an order against the body corporate compelling them to fix your CP roof as it is a body corporate’s duty to maintain all CP. Bearing in mind that in CSOS applications of that nature, expert opinion and reports can help the adjudicator make an informed ruling.
Good day, I would like to ask about maintenace of gardens on common property?
I have a neihgbour who insists that he owns a garden that is part of the common property.
The plans show that the garden is on the common property.
If the registered EUA plans for the scheme indicate that it is CP, then your neighbour has no right to claim the exclusive use (or ownership) of the garden on the CP. As it is CP, it is the maintenance responsibility of your body corporate. If your neighbour would like to have the garden converted to an EUA, he must make an application to your body corporate for permission to have it converted to an EUA, to which your body corporate can only approve on a unanimous resolution.