Debunking the “Structural” Misconception in Sectional Title Schemes

By Jennifer Paddock

A common misunderstanding about sectional title schemes is that if a building issue is “structural” in nature, it automatically falls under the body corporate’s responsibility, even if it is located within a section. This is a misconception. Under the Sectional Titles Schemes Management Act 8 of 2011 (STSM Act), whether an issue is structural or not is irrelevant when determining responsibility for maintenance, repairs, and costs. Instead, the key factor is the nature of the property where the defect is located. Let’s clarify how responsibility is assigned under the STSM Act.

Determining Responsibility Under the STSM Act

To establish who is responsible for maintaining, repairing, and paying for an issue, we must first identify the type of property involved:

1. Sections
   A section is the privately owned part of a sectional title unit, such as an apartment or townhouse. Under section 13(1)(c) of the STSM Act, the owner of the section is responsible for maintaining and repairing it, as well as covering the associated costs. This applies regardless of whether the issue is structural (e.g., a crack in an internal wall) or non-structural (e.g., damaged floor tiles within the section).
2. Unregulated Common Property
   Unregulated common property refers to common property areas of the scheme that are not subject to exclusive use rights (e.g., the roof, the ‘outer skin’ of exterior walls, or communal corridors). According to section 3(1)(l) of the STSM Act, the body corporate is responsible for maintaining, repairing, and paying for any issues in these areas, whether structural or otherwise.
3. Exclusive Use Areas
   Exclusive use areas are parts of the common property allocated for the exclusive use of a specific section owner, such as a private garden area or parking bay. Under section 3(1)(l) of the STSM Act, the body corporate is responsible for arranging the maintenance and repair work. However, section 3(1)(c) stipulates that the section owner who holds the exclusive use rights must cover the costs, unless the scheme’s rules make the section owner directly responsible for maintaining and repairing their exclusive use area.

Determining the Nature of the Property

How do you know whether a particular area in a sectional title scheme forms part of a section, part of the unregulated common property, or part of an exclusive use area? 

The answer lies in one critical concept: boundaries. 

Boundaries of sections, the unregulated common property and registered exclusive use areas are shown on the scheme’s registered sectional plan. If the scheme has rule-based exclusive use areas, these boundaries will be shown on a layout plan attached to the scheme’s rules.

In short, when you need to determine the legal nature of any space within the scheme, consult the scheme’s registered sectional plan and the scheme’s rules when dealing with rule-based exclusive use areas. 

Why “Structural” Is Irrelevant

The misconception that structural issues are always the body corporate’s responsibility likely stems from the assumption that structural defects affect the building as a whole. However, the STSM Act makes no distinction between structural and non-structural issues. For example:

• A structural crack in a wall within a section is the section owner’s responsibility because it is located within their privately owned section.
• A structural issue in the building’s foundation, which forms part of the unregulated common property, falls under the body corporate’s responsibility.

The determining factor is not the nature of the defect but the location and classification of the property under the STSM Act and Sectional Titles Act 95 of 1986 (ST Act).

Practical Implications

This distinction has significant implications for owners and trustees. Misunderstanding responsibility can lead to disputes, delays in repairs, and unnecessary costs. To avoid these issues:

• Identify the property type: Determine whether the defect is in a section, unregulated common property, or exclusive use area.
• Consult the STSM Act: Refer to the relevant sections of the STSM Act to confirm who is responsible for maintenance, repairs, and costs.
• Check the scheme’s rules: Scheme rules sometimes change the default positions set out in the STSM Act, so it’s essential to also check the scheme’s rules.
• Seek expert advice: When in doubt, consult a sectional title specialist to ensure compliance with the law.

Conclusion

The belief that structural issues automatically fall under the body corporate’s responsibility is a myth. The STSM Act clearly assigns responsibility based on the nature of the property – section, unregulated common property, or exclusive use area – not whether the issue is structural. By understanding these distinctions, owners and trustees can ensure that maintenance, repair and cost obligations are correctly assigned.

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Article reference: Paddocks Press: Volume 20, Issue 4

This article is published under the Creative Commons Attribution license.

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