Who is responsible if the problem is underneath a EUA?

A Legal Analysis of Responsibility for Maintenance of a Water Pipe in or under an EUA

By Prof. Graham Paddock

In sectional title schemes, the question of who is responsible for maintaining and repairing infrastructure such as water pipes often creates confusion, especially when such pipes or other infrastructure items run in or beneath exclusive use areas (EUAs). In this article, Adj. Prof. Graham Paddock  explores the legal principles that govern this issue, using the water pipe as an example and focusing on the interplay between various provisions of the Sectional Titles Schemes Management Act 8 of 2011 (STSMA).

Key Provisions of the STSMA

Three provisions are particularly relevant:

  1. Section 3(1)(r): This section obliges the body corporate to maintain and repair pipes, wires, cables, and ducts that: Exist on the land of the scheme, and are capable of being used in connection with the enjoyment of more than one section or serve one section over common property. The location of such infrastructure on common property triggers the body corporate’s maintenance obligation.
  2. Proviso to Section 3(1)(c): While Section 3(1)(c) obliges the body corporate to maintain all common property, the proviso allows the recovery of maintenance, repair, and insurance costs from owners who benefit from an EUA. This means the body corporate performs the work (if the EUA-holding owner has not already done so) but shifts the financial burden to the EUA holder.
  3. Section 13(1)(c): This provision imposes specific obligations on owners: To repair and maintain their section in good repair, and, to keep any EUA allocated to them in a clean and neat condition.

Notably, this section does not require EUA holders to maintain or repair infrastructure unless they caused damage.

The Apparent Tension

Sections 3(1)(r) and the proviso to 3(1)(c) may appear to conflict when applied to a scenario like a water pipe located beneath an EUA. Section 3(1)(r) suggests that the body corporate is responsible for maintenance and repair, while the proviso to Section 3(1)(c) permits cost recovery for work related to an EUA. This raises questions about the responsibilities of EUA holders.

Resolving the Issue

The resolution lies in distinguishing between the purpose and location of the pipe:

  1. If the pipe serves the EUA itself (e.g., irrigation for an exclusive use garden): The pipe is integral to the EUA’s use, and the proviso to Section 3(1)(c) applies. The body corporate must maintain the pipe but may recover the costs from the EUA holder.
  2. If the pipe serves the section directly (e.g., water supply): Even if the pipe runs beneath the EUA, it serves the section and is not integral to the EUA. In this case, Section 3(1)(r) governs: the body corporate must maintain and repair the pipe at its own cost.

This distinction ensures fairness by allocating financial responsibilities based on who benefits from the infrastructure.

The Role of Section 13(1)(c)

Section 13(1)(c) complements this analysis by clarifying the obligations of EUA holders. While they must keep their EUA clean and neat, they are not responsible for maintaining or repairing infrastructure within or beneath the EUA unless they caused damage. However, EUA holders are expected to ensure that the area is tidy and free of obstructions, enabling the body corporate to access and maintain infrastructure when necessary.

Practical Implications

In the case of a water pipe located beneath an EUA: If the pipe serves only the EUA, the body corporate performs the work but recovers costs from the EUA holder. If the pipe serves the section directly, the body corporate bears the cost of maintenance and repair.

Section 13(1)(c) reinforces that EUA holders are responsible only for the general upkeep of their allocated area and not for infrastructure maintenance.

Conclusion

By carefully interpreting the provisions of the STSMA, the tension between Section 3(1)(r), the proviso to Section 3(1)(c), and Section 13(1)(c) is resolved. The body corporate retains the primary responsibility for maintaining common property infrastructure, while EUA holders contribute costs only when the infrastructure is integral to their exclusive use rights. This nuanced approach ensures compliance with the law and equitable allocation of responsibilities in sectional title schemes.

Trustees and managing agents should apply these principles to clarify disputes and foster cooperative management practices.

Article reference: Paddocks Press: Volume 20, Issue 01

This article is published under the Creative Commons Attribution license.

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