Jennifer_Paddock Sectional title living often sees people living above and below each other. This means that when there is a leak in a first floor or higher section, the section below it can be damaged. Balconies pose a particular difficulty in this regard as their waterproofing often seems to fail and the section below suffers damage as a result. It seems like the situation should be simple… if your section suffers damage as a result of the failure of the owner above to maintain his waterproofing, he should ensure that the balcony is properly waterproofed and pay for the costs of repairing the damage to your section, right? Well, unfortunately it’s not that easy as balconies are not all created equal. In this article we examine three different balcony situations / classifications and explain in each case who is liable for what.

“…we examine three different balcony situations / classifications and explain in each case who is liable for what…”

The balconies form part of the owners sections

Because of the ‘median line’ concept that applies to sectional boundaries, each owner owns his section to the midpoint of its floors, walls and ceilings. The sectional plan for a scheme shows each section and you can tell whether the balcony is or is not included in the section by checking what areas are enclosed within the solid line that delineates the boundary of the section. In the situation where the sectional plan shows that the balconies form part of the sections, which can happen even where there are open balconies, the balcony floors are part of the sections. So the higher owner will own and be responsible for his balcony floor, to the midpoint of that floor, while the underside of the balcony (in this case your ceiling) forms part of your section and is your responsibility. Here there is no common property between your section and the one above and therefore the body corporate is not obliged to involve itself in dealing with any complaints relating to the leaking balcony or initiate and oversee any repairs in this regard.

Each owner is obliged in terms of section 44(1)(c) of the Sectional Titles Act 95 of 1986 (“the Act”) to repair and maintain his section in a state of good repair. Therefore if the waterproofing membrane of the higher owner’s balcony has failed, that owner is obliged to repair it. Similarly, if your ceiling is damp and damaged as a result of the failed waterproofing, it is your responsibility as owner of the lower section to repair it. The law of delict allows a person who has suffered loss as a direct result of another’s acts or omissions to claim compensation from that person. In this situation, if you could prove that your ceiling was damp as a direct result of the above owner’s failure to adequately repair and maintain the waterproofing membrane forming part of his section, you would be entitled to reclaim the reasonable costs of repairing the damp in your section from him. Clearly it would make sense to first compel the higher owner to repair their balcony floor so that the repairs to your balcony ceiling will not be ruined by further water penetration.

The balconies are common property subject to exclusive use rights

The balcony above yours is, according to the sectional plan, part of the common property but the owner of the flat that gives access to the balcony has exclusive use rights to the balcony. In this situation one has to distinguish between the operational and financial responsibility for maintaining and repairing the balcony. The body corporate is responsible for maintaining and repairing all of the common property in terms of section 37(1)(j) of the Act, but the owner entitled to exclusive use of an area of common property is responsible to pay the maintenance and repair costs associated with that area.

So if the higher balcony in this situation is leaking into your exclusive use balcony or your section and causing damp problems for you, you can approach the body corporate as the party responsible to repair and maintain it. The body corporate must carry out the repairs to the balcony and then recover the costs of doing so from the owner entitled to exclusive use of the balcony.  You could claim the costs of repairing the damp in your section from the body corporate and insist that it carries out the repairs to the balcony ceiling in your exclusive use area.

But in this situation you should look at the scheme’s rules to check whether they have been amended to provide that the owner entitled to exclusive use will actually carry out the repairs and maintenance of the balcony. If this is the case, you should approach the owner above directly and ask him to see to the repairs. If he does not comply you can request that the body corporate use its power under prescribed management rule 70 to send the owner a letter giving him 30 days to effect the repairs, failing which the body corporate can effect the repairs and reclaim the reasonable costs of doing so from the owner.

The balcony is unregulated common property

“…the body corporate can effect the repairs and reclaim the reasonable costs of doing so from the owner…”

In some schemes the balconies, although only used by the residents of the sections attached to them, form part of the common property and are not subject to any exclusive use rights whatsoever. These balconies should be treated like any other area of common property and be maintained and repaired by the body corporate which must also fund the maintenance and repairs of these balconies from the levy fund.

If a balcony forming part of the unregulated common property is leaking into your section or balcony or causes leaks or damp you should approach the body corporate in this regard.
I would recommend that in a situation like this you suggest that the body corporate should legally “connect” the balconies to their adjacent sections by conferring rule-based exclusive use rights on the owners from time to time of the sections adjacent to the balconies. The reason for this recommendation is to make sure that the people who actually use the balconies will be responsible for the costs of their maintenance and repair. Such rule-based exclusive use rights can be conferred in terms of the provisions of section 27A of the Act which requires the body corporate to make appropriate rules, either management rules by unanimous resolution or conduct rules by special resolution. The rules must have a layout plan to scale attached to them clearly indicating the size of the area and the purpose for which it is to be used. These rules must be filed in the scheme’s file held at the Deeds Registry before they become enforceable.

“…these rules must be filed in the scheme’s file held at the Deeds Registry before they become enforceable…” 

 

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