By Anton Kelly
If a group of owners wish to build on a common property, what are the steps required to make this happen? For example, what would happen if the owners wanted to build a swimming pool?
Individual owners can only build on the common property if they formally extend their sections. Aside from the various approvals needed from the local municipality, a building extension such as an extra bedroom must be authorised by the body corporate. A special resolution is required and, if the extension alters the participation quota of the section by 10% or more. All financial institutions holding bonds over sections in the scheme must give their consent.
Building a swimming pool that is accessible to all scheme residents would count as an improvement to the common property. An improvement to the common property is a significant change or addition that benefits all owners and is paid for by the body corporate. Because it’s everyone’s money, the level of consensus needed to approve that spending is high. Improvements are categorised as luxurious or non-luxurious and both require a unanimous or special resolution (respectively). There is no definition of luxurious or non-luxurious in the Act or the prescribed rules. A very basic rule of thumb could be that a feature which is “nice to have” would be luxurious and a “necessary to have” feature would be non-luxurious. Ultimately, it ends up a value judgement that will depend on the scheme and all circumstances of the situation.
There are further complications. There is seldom an excess of unused space in a sectional titles scheme, so it’s likely that garden and parking bays will need to be shuffled when making an improvement that takes up a lot of space. If parking bays are visitor’s bays, moving them will require only the approval of a necessary improvement – the creation of extra bays: site preparation, drainage and surfacing. If the bays are exclusive-use areas, as is likely, those exclusive-use rights would have to be cancelled and re-created. Both processes require the appropriate special or unanimous resolutions.
If the swimming pool is not intended to be available to all scheme residents, but only to one or some of them, then the owner(s) concerned would have to obtain exclusive-use rights to the area of common property involved. The permission of the trustees would then have to be obtained to build the pool. At least a special resolution would be required to authorise the creation of the exclusive-use rights.
Aside from the cost of the improvement, the resolutions required to approve all the steps prove that those owners who want the pool would have to do some very persuasive talking to their co-owners in order to get everyone to approve the project.
Article reference: Paddocks Press: Volume 7, Issue 5, Page 1
Anton Kelly is one of the course conveners of the University of Cape Town (Law@Work) Sectional Title Scheme Management course. Next course starts, 18 June 2012. For more information please contact Emma on emma@paddocks.co.za or 021 447 4130.
This article is published under the Creative Commons Attribution license.
3 Comments.
The Trustees wish to cover a section of the common property with a roof to facilitate the parking of a Body Corporate vehicle
Do they need a 100% vote of approval
Does the PQ need to be altered
Do the sectional title plans need to be altered
Dear Deneys,
Thank you for your comment. We are more than happy to help, however we do not give free opinions / advice. Please email us on consulting@paddocks.co.za with regards to your matter, and we can provide you with a no-obligation quote, so that we can assist you. Alternatively, join us on http://www.paddocks-club.co.za.
Kind regards,
Paddocks
What factors determine the cost of the common property to be ‘bought’ by the owner wanting to build a swimming pool on that section of common property, ie is it a price per sq m agreed to by the body corporate members or does it have to be market related ?.