September is finally here! This marks the beginning of the spring season. Temperatures are rising and the days are becoming longer. It is for this reason that this Carryn’s Corner contribution will focus on whether it is possible to have a swimming pool in a sectional title scheme. Recently we received a question on the Paddocks Facebook page. Cheri asks:
There are three areas in which a swimming pool can be installed in a sectional title scheme. The consent requirements and considerations for the installation of a swimming pool will differ depending on where the pool is to be placed. The pool could be placed:
1. On unregulated common property
The installation of a swimming pool on common property would be a luxurious improvement. Prescribed management rule 33(1) states that:
“The trustees may, if the owners by unanimous resolution so decide, effect improvements of a luxurious nature on the common property”.
In terms of PMR 29(2)(a) the trustees must take all reasonable steps to insure the owners and the trustees and to keep them insured against liability in respect of death, bodily injury or illness; or loss of, or damage to, property, occurring in connection with the common property, for a sum of liability of not less than one R100 000, which sum may be increased by the owners in general meeting. Therefore there should be insurance against liability for damages arising from the use of a pool on common property and in exclusive use areas.
In addition, the body corporate must make sure that the whole area is maintained and any defects repaired so it does not present any danger. The applicable safety requirements will be set out in the local municipality by-laws. It is important that the pool complies with local municipal requirements with regard to fencing and general safety because section 37(1)(n) of the Act states that the body corporate must ensure compliance with any law relating to the common property or any improvement of land comprised in the common property. The body corporate should also consider placing a sign warning users that owners, occupiers and visitors use the pool at their own risk. Furthermore, I would recommend a conduct rule that requires that children must be supervised by an adult or guardian at the pool area.
2. In an exclusive use garden area
Prescribed management rule 68(1)(vi) deals with improvements to exclusive use areas. It states that an owner:
“…shall not construct or place any structure or building improvement on his or her exclusive use area, without the prior written consent of the trustees, which shall not be unreasonably withheld and that the provisions of section 24 and section 25 or other relevant provisions of the Act or the rules, will not be contravened”.
Section 24 deals with extension of sections and section 25 deals with the extension of schemes by the addition of sections and exclusive use areas or by the addition of exclusive use areas only.
PMR 33 does not apply in this case, because the body corporate is not paying for this improvement. When an individual owner proposes to install a swimming pool, which installation should only take place within the confines of an exclusive use area to which that owner holds rights, the decision is one taken by the trustees who can give the necessary permission under PMR 68(1)(vi), and not by the owners.
3. On a balcony, patio or stoep that is part of a section
There is no provision in the Act or the prescribed rules that deals directly with granting permission to an owner to install a pool in their section. There are three provisions that could be used to prohibit an owner from building a pool in any part of their section.
Prescribed management rule 68(1)(iii) states that an owner:
“…shall not 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”.
The body corporate and trustees should also take other considerations into account when deciding on whether to give consent for a swimming pool. The pool should not affect the harmonious appearance of the building or be aesthetically displeasing. Prescribed conduct rule 5 states that:
“The owner or occupier of a section used for residential purposes shall not place or do anything on any part of the common property, including balconies, patios, stoeps, and gardens which, in the discretion of the trustees, is aesthetically displeasing or undesirable when viewed from the outside of the section.”
Prescribed management rule 68(1)(iv) states that an owner:
“…shall not do anything to his section or exclusive use area which is likely to prejudice the harmonious appearance of the building”.
Furthermore, it should always be considered how it would affect the rights of other owners and occupiers. The trustees should make absolutely sure that they know and take into account all of the possible consequences before consents are given.
Section 44(1)(e) of the Act states that:
“An owner shall not use his section or exclusive use area, or permit it to be used, in such a manner or for such purpose as shall cause a nuisance to any occupier of a section”.
Section 44(1)(d) of the Act states that:
“The owner shall not use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof by other owners or other persons lawfully on the premises.”
Private pools increase the value of properties, but they also increase the amount of noise generated and the amount of water used. A swimming pool is a permanent feature that might today be used by a retired couple who are quiet and careful and next year by a family with three young children who make a substantial amount of noise. Apart from the possible noise, it must be considered whether the owner will pay for the water used in the pool and whether that water source is separately metered. It must be considered whether granting permission is a sensible move, in the particular case and for the scheme generally. The point of departure must be to do what is best for the scheme. If the trustees agree to one swimming pool, they are opening the door to all owners having them. It could even be necessary to call a general meeting of owners to allow the matter to be properly debated before the trustees make up their minds. Owners could even choose to give them a direction in terms of section 39(1) of the Act as to how to treat this type of application. I also recommend a conduct rule that codifies how swimming pool applications should be treated; that will ensure separate metering of water consumption and that sets out the rights and obligations of the owner concerned, the immediate neighbours and the body corporate.
Article reference: Paddocks Press: Volume 09, Issue 09, Page 4.
Carryn Melissa Durham is Specialist Sectional Title Lawyer (B.A LL.B, an LL.M), currently completing her Doctorate in sectional titles. Carryn heads up the Paddocks Private Consulting Division. For more information please contact Nicole on 021 686 3950 or firstname.lastname@example.org.
This article is published under the Creative Commons Attribution license.