Dr Carryn Melissa Durham

At a basic level, the Sectional Titles Schemes Management Act 8 of 2011 (“the STSMA”) provides that the body corporate must maintain the common property, and unit owners must each maintain their section.

This article, sets out the basic maintenance responsibilities of the common property and some of the more complex situations, where both the function of a utility service and its location are important when determining maintenance responsibilities.

Common property is defined in section 1 of the STSMA as follows:

“‘common property’, in relation to a scheme, means
(a) the land included in the scheme;
(b) such parts of the building or buildings as are not included in a section; and
(c) land referred to in section 5(1)(d).”

The body corporate has the power to purchase, hire or otherwise acquire movable property for the use of owners for their enjoyment or protection, or in connection with the enjoyment or protection of the common property in terms of section 4(c) of the STSMA. Assets acquired by the body corporate may also be incorporated into the common property and will need to be maintained by the body corporate.

For example assets may include the following:

  • pool furniture for use around a common property swimming pool;
  • a generator;
  • gardening equipment;
  • gym equipment; or
  • adjoining land purchased to use as a tennis court or parking lot.

The body corporate must properly maintain all the common property and keep it in a state of good and serviceable repair in terms of section 3(1)(l) of the STSMA.

The STSMA does not distinguish between structural and non-structural maintenance and repair responsibilities. Therefore, any parts of a building that are structural in nature must be maintained by the body corporate or unit owner in a structurally sound condition depending on whether those parts of the building are common property or part of a section.

In terms of section 28 of the Sectional Titles Act 95 of 1986 (“the STA”) there are a number of implied servitudes, which are deemed incorporated in the title deeds of all owners, that operate between the sections themselves and between sections and the common property. Each section is entitled to support from any other section and any common property beneath it or next to it and which can support it. Equally, each section has a duty to give support to any other section or common property above or next to it and which it can support. In practical terms this means that an owner cannot change his section so as to reduce the structural support it gives any other section or the common property. This is reiterated in Prescribed Management Rule (“PMR”) 30(d) which obliges an owner not to make alterations which are likely to impair the stability of the building or the use and enjoyment of other sections, the common property or any exclusive use area.

In addition to maintaining the common property, the STSMA also assigns the body corporate the responsibility for maintaining the utility infrastructure within a sectional titles scheme.

Utility infrastructure includes:

  • pipes, wires, cables and ducts;
  • plant, machinery, fixtures and fittings and equipment used in connection with the common property and sections; and
  • separate meters to record the consumption of electricity, water and gas.

Utility services include:

  • water reticulation or supply;
  • gas reticulation or supply;
  • electricity supply;
  • air conditioning;
  • telephone service;
  • a computer data or television service;
  • a sewer system;
  • drainage;
  • a system for the removal or disposal of garbage or waste; or
  • another system or service designed to improve the amenity, or enhance the enjoyment, of sections or the common property.

The body corporate must keep in a state of good and serviceable repair, and properly maintain the plant, machinery, fixtures and fittings used in connection with the common property, and sections in terms of section 3(1)(q) of the STSMA. While most of the utility infrastructure is considered common property for a sectional titles scheme and is therefore the body corporate’s responsibility to maintain, there are some exceptions.

The body corporate has the responsibility, subject to the rights of the local authority concerned, to maintain and repair (including renewal where reasonably necessary) pipes, wires, cables and ducts existing on the land and capable of being used in connection with the enjoyment of more than one section or of the common property or in favour of one section over the common property in terms of section 3(1)(r) of the STSMA.

Therefore the owner of the section will be responsible for the maintenance of pipes, wires, cables and ducts that:

      1. only supplies a utility service to that section; and
      2. is located in that section.

Also, the system that supplies a section with hot water must be maintained by the owner of the section it supplies, irrespective of where it is located. If the system supplies more than one section, the owners of those sections share the responsibility and costs.

The body corporate must, if so directed by a resolution of members, install and maintain separate meters to measure the supply of electricity, water, gas or the supply of any other service to each member’s sections and exclusive use areas and to the common property in terms of PMR 29(3)(a). The body corporate must recover from members the cost of such supplies to sections and exclusive use areas based on the metered supply in terms of PMR 29(3)(b).

The body corporate may on the authority of a special resolution install separate pre-payment meters on the common property to control the supply of water or electricity to a section or exclusive use area in terms of PMR 29(4). All members and occupiers of sections must be given at least 60 days notice of the proposed resolution with details of all costs associated with the installation of the pre-payment system and its estimated effect on the cost of the services over the next three years.

In order to establish maintenance responsibilities, the common property and sections in a scheme must be accurately identified. The registered sectional plan for a sectional titles scheme must clearly show the boundaries of the common property and the sections in the scheme.

Should you require consulting services to establish where a maintenance responsibility lies, please contact us at consulting@paddocks.co.za.


Article reference: Paddocks Press: Volume 12, Issue 04, Page 02.

Dr Carryn Melissa Durham is one of the most highly qualified Sectional Title Attorneys in the country (BA, LLB, LLM and LLD), Carryn forms part of the Paddocks Private Consulting Division.

This article is published under the Creative Commons Attribution license.

Back to Paddocks Press – May 2017 Edition.

17 Comments.

  • Andre Ellis
    14/11/2017 14:54

    Dear Dr. Durham

    Just one question, you seldom address the area normally situated between the outer walls called the ‘cavity’. Is the cavity common property? For example, the kitchen waste pipe of a section is leaking, the waste pipe is situated in the cavity. Who is responsible to fix the waste pipe?

    • Paddocks
      17/02/2018 18:37

      Hi Andre,
      This is a perfect question for the Club: http://club.paddocks.co.za/

      Unfortunately, our consultants do not monitor this page but you and many others receive replies within 24 hours to all sorts of community scheme queries on the discussion forums within the Club.

      Hope this helps!
      Kind regards,
      Paddocks

  • Good day
    I live in a complex where there are no prepaid meters for water , the body corporate now wants to recover water from the owners by way of the PQ system , can Trustees resolve to do this , or do they need consultation from all owners at a meeting .

    • Paddocks
      17/02/2018 18:31

      Hi Thabo,
      Thank you for your comment. We would love to help but unfortunately do not give free advice. Please see below for how we can help:
      – We offer consulting via telephone for R390 for 10 minutes. Please call 0216863950.
      – We have Paddocks Club, an exclusive online club, headed by Prof Graham Paddock, to help you get answers to your questions about community schemes: http://club.paddocks.co.za/
      – We offer a Free Basics of Sectional Title short course starting soon: http://www.paddocks.co.za/courses/free-basics-of-sectional-title/

      Kind regards,
      Paddocks

  • Good morning

    I would like to know as from which year was the 10% yearly levy increase applicable. Our complex has always just put it up by R200 or R250 and not percentage wise.

    A owner in our complex went to the ombudsman regarding the common property. A settle agreement was reached between them and the trustees in September 2017. We, as owners were never informed about this matter. We were only told in January that we now have a special levy of R1800 payable over 2 months to cut off trees and put up poles on the common property. Are we as owners liable for this levy as it is not a necessity it is purely pettiness between the two owners in the complex. They have been fighting for over 20 years. The trustees got a quotation to have the trees removed but now our gardener is removing the trees. 22 out of the 29 units are refusing to pay this and they are now threatening us that we will not be able to vote in the next meeting.
    We have 6 trustees and only 2 owners are willing to pay the special levy. 1 trustee is also refusing to pay the special levy.

    We also just found out that one of the trustees are in arrears with the levies. Is this person allowed to be a trustee?

    Your advise will be highly appreciated.

    Thanking you and kind regards

    • Paddocks
      16/02/2018 21:36

      Good day Jenny,
      Thank you for your comment. We would love to help but unfortunately do not give free advice. Please see below for how we can help:
      – We offer consulting via telephone for R390 for 10 minutes. Please call 0216863950.
      – We have Paddocks Club, an exclusive online club, headed by Prof Graham Paddock, to help you get answers to your questions about community schemes: http://club.paddocks.co.za/
      – We offer a Free Basics of Sectional Title short course starting soon: http://www.paddocks.co.za/courses/free-basics-of-sectional-title/

      Kind regards,
      Paddocks

  • Good day,
    Who is responsible for Maintenance and testing on meter reading boxes when faulty for units in a sectional title complex when the meter reading boxes are not inside the units but outside on the common property and is controlled by the caretaker and Trustees that have access to them and not the owners.

    • Paddocks
      09/03/2018 16:03

      Hi Janine,
      Thank you for your comment. We would love to help but unfortunately do not give free advice. Here’s how we can help:
      – We offer a Free Basics of Sectional Title 1-week short course. You’ll be able to ask your course instructor any related questions. Find out more here.
      – We offer consulting via telephone for R390 for 10 minutes. Please call us on +27 21 686 3950.
      – We have Paddocks Club, an exclusive online club, to help you get answers to your questions about community schemes. Find out more here.

      Kind regards
      Paddocks

  • Good Afternoon,
    Our apartment has a ground floor & Basement owner that is commercial space – restaurant. The basement of this owner seems to be having groundwater problems and we believe that the sump pump in the basement (exclusive use) is faulty and should probably be replaced. However, I am a bit confused on who is responsible for its maintenance and now replacing as it seems to no longer be working?

    Kind Regards,
    Karina

    • Paddocks
      21/05/2018 17:01

      Hi Karina,

      Thank you for your comment. We would love to help but unfortunately do not give free advice. Here’s how we can help:
      – We offer a Free Basics of Sectional Title 1-week short course. You’ll be able to ask your course instructor any related questions. Find out more here.
      – We offer consulting via telephone for R490 for 10 minutes. Please call us on +27 21 686 3950.
      – We have Paddocks Club, an exclusive online club, to help you get answers to your questions about community schemes. Find out more here.

      Kind regards
      Paddocks

  • Jethro Hill
    21/06/2019 18:46

    Is the trustees have decided to upgrade the electric fence and add wall spikes. Can the owner ask for a copy of the quotes…?

  • Hello please i need to know is it the tenant who pays for the common property or the landlord ?

    • Paddocks
      07/02/2020 09:12

      Hi Tosin,

      Thank you for your comment. However, we do not provide free advice. Please email us on consulting@paddocks.co.za with regards to your matter, and we can provide you with a no-obligation quote, so that we can assist you.

      Kind regards,
      Paddocks

  • Hi,

    I’m an owner in a sectional title, my electrical cable burnt out I had the Municipality to investigate and they said it is not on their side, it is from the kiosk that stands on the communal area. who is responsible to replace this cable?
    Thank you

    • Paddocks
      23/10/2020 09:09

      Hi Trienks,

      Thank you for your comment. This is something that our legal team would need to advise on. Please send your query to consulting@paddocks.co.za, and the team will provide a quotation for their assistance with your matter.

      Kind regards
      Paddocks

  • Zany Doubell
    10/03/2021 09:29

    Good day. thankyou for a very informative article.
    When it comes to the electricity Reticulation system then pre-paid meters have been installed, who is responsible for the maintenance of the reticulation system and getting a Certificate of compliance for this system. Would this be the Body corporate or the municipality?

    • Paddocks
      12/03/2021 07:30

      Hi Zany,

      Thank you for your comment. Our legal team would need to assist with your query. Please send the query to consulting@paddocks.co.za and they will provide a no-obligation quote for their assistance with this query.

      Kind regards
      Paddocks Team