Sectional title legislation contains a couple of head-scratchers and the subject matter of this article is a prime example of one. Let’s look into this question in a bit more detail:
We know that, as the owner of a section in a sectional title scheme, you are responsible for the repair and maintenance of your section. Amongst other things, this includes any pipes situated within your section that only serve that section (not the common property or any other section). So when such a pipe bursts (as they often do), the body corporate is not wrong when they communicate to you that you are responsible to fix the pipe and pay for the associated works… but is that the end of the story?
When diving deeper into sectional title legislation we find that the body corporate has a responsibility to insure “the building” and specifically to insure it against “water escape, including bursting or overflowing of water tanks, apparatus or pipes”. Therefore, while you must repair the pipe, you are able to claim the cost of doing so from the body corporate’s insurance.
When first hearing this, the knee-jerk reaction of many a trustee has been to question it, feeling that it would be odd to allow an owner to claim the costs from the body corporate’s insurance when it is not the body corporate’s responsibility to repair or maintain that portion of the property. Could that have been the legislature’s intention?
It must have been indeed as we find further support for this position in the Prescribed Management Rules, which stipulate that a member is responsible for any excess amount relating to damage to any part of the building which that member is responsible to repair and maintain. This rule therefore provides absolute clarity:
- A member can institute a claim against the body corporate’s insurance for a part of the property which the member is responsible to maintain and repair (for example, a pipe situated within their section and serving only their section); and
- Should the insurer approve the claim, the excess payable needs to be paid by the member responsible to maintain and repair the area (in other words, the owner of that section).
If the insurer does not approve the claim, the owner of the section will be responsible for the full cost of the repair and/or replacement.
If you find that you get stuck on head-scratchers like this one often, why not consider upskilling by doing a Paddocks UCT online short course aimed at empowering community scheme roleplayers with the knowledge to answer difficult questions?
Contact us at firstname.lastname@example.org to find out more.
Article reference: Paddocks Press: Volume 16, Issue 8.
Specialist Community Scheme Attorney (BA (Law) LLB), Ané de Klerk, is a senior associate at The Advisory, a boutique law firm specialising exclusively in community scheme law. Get in touch with her at www.theadvisory.co.za.
This article is published under the Creative Commons Attribution license.