By Anton Kelly
Anton KellyThe maintenance of sectional property is not always straightforward because the responsibility, both operational and financial, rests on different people or entities depending on the exact nature of the property.

There are three classes of sectional property that must be considered in a discussion of maintenance. They are unregulated common property, the sections, and portions of the common property that are subject to rights of exclusive use by one or more owners in the scheme.

The Sectional Titles Act places the responsibility for the maintenance of the common property squarely on the body corporate. This responsibility is both operational and financial. The body corporate must arrange for the maintenance to be done and must pay for it. There is one exception. Hot water systems that are situated in or on the common property and that serve one or more sections are the responsibility of the owners of the sections supplied with hot water from those installations. They must both arrange and pay for their hot water cylinder maintenance.

Owners must maintain their own sections. This is a more onerous responsibility in a sectional title scheme than in conventional property (for example, a suburban house), because a lack of maintenance could negatively affect another section, the common property or the appearance of the scheme from the outside. In any of these circumstances, the owner who failed to adequately maintain his or her section is responsible for any consequential damage to the other parts of the scheme. The interesting exception to this responsibility is that the body corporate is responsible for the maintenance of any “pipes, wires, cables and ducts” in a section that also serve any other section or the common property.

An owner who enjoys rights of exclusive use over some portion of the common property must keep that “exclusive use area” clean and neat. This concept is quite often misunderstood. Exclusive use areas remain common property, owned by all the owners in the scheme in undivided shares, and are thus the responsibility of the body corporate to maintain. However, the Act makes it plain that all the costs associated with exclusive use areas must be recovered from the owners who hold the rights of exclusive use to those areas. So the responsibility for maintenance of exclusive use areas is split: the body corporate is operationally responsible and the owners concerned are financially responsible. It is not unusual for owners who have exclusive use rights to carry out “pre-emptive maintenance” on the exclusive use area so that the body corporate does not have to spend (and recover from them) the money to keep that area in good order.

Article reference: Paddocks Press: Volume 6, Issue 4, Page 1
Anton Kelly is one of the Course Conveners of the University of Cape Town (Law@Work) Sectional Title Scheme Management course. The next presentation will start on 20 June 2011.

This article is published under the Creative Commons Attribution license

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