As South Africans we are incredibly passionate about our braais. It is evident in our social calendars, our meal planning, and certainly our homes. When selling a home these days a braai is advertised with as much enthusiasm as an en-suite bathroom or double garage and has certainly overtaken pools as the “must-have” item in outside entertainment areas. It therefore comes as no surprise to me that owners of sectional title units with exclusive use gardens often ask the body corporate’s permission to build a braai in their “private garden”. As the cost of building and maintaining the braai would be borne by the unit owner enjoying the exclusive use right over the garden, the argument is made that the body corporate would bear no burden at all, but be careful before simply giving your instinctive “ok” and make sure you have considered the following:

1. Prescribed Management Rule 30(b) says the body corporate has an obligation to take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area, does not use a section or exclusive use area in any manner that will cause a nuisance to any occupier of a section. So the body corporate has a duty to take any and all reasonable steps to guarantee that the member does not use his exclusive use garden in any way that would cause a nuisance to other occupiers. For example, if the member ends up entertaining his friends around the braai late at night, laughing and socialising into the early hours of the morning, the body corporate would have an obligation to take action, regardless of whether such action is forbidden by the scheme’s conduct rules or not.
2. Prescribed Management Rule 30(d) further requires that the body corporate take all reasonable steps to ensure that a member, or any other occupier of a section or exclusive use area, does not make alterations to a section or exclusive use area that are likely to interfere with the use and enjoyment of other sections. The body corporate is therefore obligated to prevent any owner from making building alterations that would interfere with other members’ enjoyment of their sections. For example, if the member obtained authorisation to build a braai in his exclusive use garden, but he then proceeded to build such braai directly underneath his upstairs neighbour’s bedroom window, the body corporate has an obligation to intervene and demand that the braai be built in another part of the garden where it will not cause smoke to blow directly into his neighbour’s bedroom.
3. Lastly, Prescribed Management Rule 30(e) obliges the body corporate to take all reasonable steps to ensure that a member or any other occupier of a section, or exclusive use area, does not do anything to a section or exclusive use area that has a material negative effect on the value or utility of other sections and exclusive use areas. So the body corporate has an obligation to prevent the member from building the braai if it would have a material negative effect on the value or utility of any other section. The body corporate may therefore wish to consider prescribing that certain materials be used (or not used) and prescribe a specific look to ensure that the braai does not devalue the other sections.

If you are unsure whether you should be giving a fellow member the “ok” to build a braai in his or her exclusive use area, or wish to discuss the manner in which to obtain approval for you to build a braai in your exclusive use garden, send an email to consulting@paddocks.co.za and we will be in contact with a no-obligation quote for a consultation.

Article reference: Paddocks Press: Volume 14, Issue 07.

Specialist Community Scheme Attorney (BA (Law) LLB), Ané de Klerk, combines her work experience as a Portfolio Manager with knowledge of conveyancing and community scheme law.

This article is published under the Creative Commons Attribution license.

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