By Prof Graham Paddock

Graham PaddockBelow is an example of a question on the discussion forum on Paddocks Club. We want to show what is available to our Community Members!


May 2011. Member 1 Question 1:

If one owner want’s to install a solar geyser at his/her unit, is this seen as a luxurious or non-luxurious improvement to the common property? Can only one owner install a solar geyser and what procedure must take place in order to approve such installation? The insurance on that specific unit’s geyser will obviously be affected by way of higher premium, will the said owner be liable for the difference of the higher premium?

Graham’s answer:Paddocks Club
The issue of a proposed improvement being luxurious or not only arises when the body corporate is paying for the improvement and the terms of PMR 33 apply, which is clearly not the case in this instance.

It is almost certain that parts of the solar-powered installation you have in mind will be on common property. They will probably change the appearance of the buildings and, like air-conditioning condenser units, need to be maintained from time to time.

I suggest that you should see if any other owners want to install this type of unit and then go to the trustees with a set of suggestions as to how the installations should be dealt with. Often the most sensible approach is to find out what all the issues are, in your particular scheme, and then make a special conduct rule to ensure that the section owners concerned, and any others who want to do the same thing in the future, as well as their successors in title, get what they want without any negative effect on other owner’s rights.

May 2011. Member 1 Question 2:
In this specific case it is only one owner who want’s to install a solar geyser, and now that I know it’s not seen as a luxurious or non-luxurious improvement, what is the correct process for the owner to follow in order to get the installation approved, can the trustees approve this or should a special meeting be held where owners approve or not approve it by way of vote?

Graham’s answer:
The trustees do have power to allow owners to make some changes to the common property in terms of PMR 4, but you will see that these are limited to safety devices and things designed to stop insects entering sections, i.e. things covering doors and windows and required to make the use and enjoyment of the section safer or more pleasant. I do not think that under this provision the trustees could approve the installation of a solar water heating installation with panels on the roof, pipes etc.

The other conduct rule that is relevant in this situation is PMR 5 which prohibits any owner doing anything on the common property that makes the exterior of the unit look less attractive. This provision serves to protect the market value of units in the scheme.

Against this background I suggest that the trustees should find out what owners think of the proposed installation and, if the majority feel that in the position it is to be placed it will not detract from the appearance of the scheme, the trustees should propose a conduct rule that allows any owner to do this.

It is important that any owner who installs such a unit, and any subsequent owner of that unit, be responsible in terms of the scheme’s rules for keeping the installation looking good and in working order. And if the installation falls into disrepair, that owner must be responsible to remove it, and/or the body corporate must be able to do so at the owner’s expense. Assuming the installation will be attached to a roof, the owner and his or her successor in title must be responsible for any additional costs that arise, in the roof maintenance or otherwise, as a result of the installation. The rule would typically require an application by an owner to the trustees for permission to install such an installation but oblige the trustees to approve that application as long as it falls within the requirements of the rule. The rule would include specific detail of the size and appearance of the various elements of the installation and its placement. In some situations where the panels are not mounted on roofs but on stands, rules of this type also include height restrictions and/or screening requirements. And you raised the issue of insurance – the rule should also include a provision that if any common expense, including insurance, is increased as a result of the existence of that installation the relevant owner will be liable for that increase.

September 2012. Member 2 Question:
If the owners in a Sectional Title Complex agree to allow solar geyser installations as per your advise above, who would be liable for the insurance of the solar geyser? Would the geyser still fall under the Complex insurance policy?

Graham’s answer:
The BC must insure all improvements. When giving consent under the type of rule I discuss above, the BC should stipulate that the owner concerned will be responsible for any increase in the insurance premiums on account of the solar heating installation.

September 2012. Member 3 Question:
What would the position be if the roof of the building is a concrete slab and there is a one metre high brick balustrade wall around the outer edges of the roof, meaning that the actual solar system would be completely out of sight. There would obviously have to be a hot and cold water pipe and probably an electrical connection leading from the unit to the solar system, but this could be boxed in to keep it neat and tidy. Would the trustees be entitled to give their permission for this installation subject to the conditions that you have discussed?

Graham’s answer:
The fact that there is a balustrade wall around the roof area addresses the issue of  appearance.  If all the other issues dealt with in this Topic are addressed then I think the trustee should promote the idea.  I make the point above that in my view the trustees are not entitled to give an owner permission to install solar heating units on common property because this is beyond a minor alteration.

Particularly if the area is a flat roof and because the installation will involve  its use for purposes for which it was not designed, I would suggest that the owner concerned should take exclusive use rights to the  area concerned. What you don’t want is to give someone permission to install what seems like a sensible appliance and then find that sections owned by other owners experience leaking or other problems as a result. So this may be a situation in which the body corporate requires, as a condition of allowing installation, that it be supervised so as to ensure that the possibility of negative consequences is minimised.

 
Article reference: Paddocks Press: Volume 7, Issue 9, Page 4
Professor Graham Paddock is available to answer questions on the discussion forum for Community Members of Paddocks Club. Get all your questions answered by joining Paddocks Club at www.PaddocksClub.co.za.


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