Navigating Accessibility Alterations in Sectional Title Schemes: A Case Study
By Prof. Graham Paddock
Introduction
An elderly lady suffering from severe arthritis and mobility issues requested the trustees of her sectional title scheme to install a ramp on the stairway connecting the front door pavement level to the ground floor of the building. This article analyzes the issues raised, arguments made, and the legal advice given in this matter, in light of the Sectional Titles Schemes Management Act of 2011.
Case Background
The trustees convened a meeting to consider the request, during which their legal adviser confirmed that the stairway in question is part of the common property, and the proposed ramp would be an improvement or alteration requiring approval under prescribed management rule (PMR) 29. Several concerns were raised, including potential interference with other owners’ use of the stairway, the financial responsibility for the alteration, and the extent of the owner’s mobility challenges. The trustees also queried whether the ramp could be constructed as a separate structure so that it could be removed at the owner’s expense if she left the scheme and it became unnecessary.
Following an investigation, the trustees received sketches of the proposed ramp, demonstrating that it would not interfere with normal use and could be removed if no longer required. The trustees were advised that a concrete ramp would be more cost-effective, particularly from a maintenance perspective, and more aesthetically in harmony with the appearance of the building. The owner confirmed her agreement to cover all costs associated with the ramp and did not require exclusive use.
Legal Analysis and Advice
The trustees’ legal adviser advised that the proposed concrete ramp should not be considered luxurious or an unnecessary alteration, but rather a reasonably necessary accessibility feature, given the owner’s mobility issues and age. She recommended the trustees follow PMR 29(2) to authorize a reasonably necessary alteration, making it clear that the ramp would not interfere with others’ use of the stairs and would be fully funded by the owner concerned.
The legal adviser suggested that the trustees provide written notice to all owners with all details required by PMR 29(2), describing the proposed alteration, its purpose, and addressing the issues raised. She advised giving owners a 30-day period to submit written comments or request a meeting to discuss the issue. Finally she suggested, assuming that the proposal was approved, that she should draft an agreement setting out the body corporate’s ongoing contract with the owner in regard to the ramp, to reduce the possibility of any future confusion on the issues.
Trustees’ Meeting and Objections
The trustees called the meeting as advised, and five out of 40 owners objected to the ramp installation. The objections were based on the following grounds:
1. Two owners argued that the ramp would negatively affect the appearance of the building and thus the value of their units.
2. Two owners suggested that if the owner in question only used the back entrance to the building, the ramp would not be necessary.
3. One owner claimed that the ramp would make the scheme look like an old age home or a home for the disabled.
The strengths of the objections are:
-aesthetic concerns may be valid, as property values can be affected by the appearance of the building, and
alternative access points could be a viable solution for the owner in question, provided they are accessible and safe.
The weaknesses of the objections are:
-the primary purpose of the ramp is to provide accessibility for all, which should outweigh aesthetic concerns in light of the owner’s mobility issues and age,
-the alternative access point may not be a feasible long-term solution, especially if it is more secluded and compromises the owner’s safety or convenience,
-discrimination against elderly or disabled individuals, if unfair, is contrary to the Bill of Rights in the Constitution of South Africa Act of 1996, and
-the objection based on the scheme looking like an old age home or a home for the disabled may be considered insensitive and contrary to a culture of protecting the rights of elderly and disabled persons and allowing them to remain in their homes for as long as possible, despite their increasing age and disabilities.
The meeting approved the trustees’ proposal by special resolution.
Conclusion
The resolution of this case study serves as an example where the trustees carefully adhered to the legal framework and considered the needs and rights of all owners, thus enabling the owners in general meeting to make informed decisions that promote accessibility and inclusivity in their communities. While objections may arise, it is crucial to weigh the strengths and weaknesses of these arguments, prioritizing the well-being of residents, and promoting an inclusive environment.
Graham Paddock is a specialist community schemes attorney, notary and conveyancer. He has been advising clients and teaching students for over 40 years, and was an adjunct professor at UCT for 10 years.
Article reference: Paddocks Press: Volume 18, Issue 4.
This article is published under the Creative Commons Attribution license.
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