A previous article titled “How to extend your section” addressed the steps that must be followed, by the owner, in order to extend their section. This article addresses the various considerations a body corporate should make before authorising an owner’s request to extend their section by special resolution.
The trustees are required to consider, and apply their minds, to each application or proposal made by owners for alterations, additions, extensions, renovations or improvements and, based on the merits of each request, either allow or deny the request.
It would be sensible for the body corporate, before giving consent by way of special resolution, to require proof that the local authority will approve the building plans.
The trustees have the discretion to declare that the extension is aesthetically displeasing or undesirable when viewed from the outside of the section in terms of prescribed conduct rule (“PCR”) 5. In addition, the trustees will also have to consider whether the proposed alterations will prejudice the harmonious appearance of the building in terms of prescribed management rule (“PMR”) 68(1)(iv).
The owner may not make alterations which are likely to impair the stability of the building in terms of PMR 68(1)(iii). It is reasonable that the trustees require the owner to give full details of the proposed structural alterations and to obtain a certificate from a structural engineer stating that the alterations will not detrimentally affect the stability of the building or the free-flow of services through any of the pipes, wires, cables or ducts.
Any proposed extension that involves the enclosure of an unenclosed area will almost certainly affect the “bulk” or “floor area ratio” that is allowed to the scheme as a whole under the local municipality’s town planning scheme. Owners should carefully consider what effect approving a particular application to extend a section will have on the ability of other owners in the scheme to do similar extensions or enclosures, as this could negatively affect their individual rights to extend their sections and the rights of the body corporate to extend the scheme in terms of section 25 of the Sectional Titles Act 95 of 1986 (“the Act”).
It is important to note that if the extension also requires a change of use, then that owner will also have to obtain the written consent of all the owners to change the purpose for which the section is intended to be used, as is shown expressly or by implication on the sectional plan or the original approved building plan; or can be inferred from the rules; or is obvious from its construction, layout or available amenities in terms of section 44(1)(g) of the Act and PMR 68(1)(v). I suggest that this consideration be done first, as it only takes one owner to refuse their written consent. In such a case there would be no point in passing a special resolution to approve the extension in terms of section 24 of the Act.
The trustees will also need to consider that the alteration will result in additional section material and additional common property material (in the form of the walls, windows and roof). It is very important that it be made clear what areas will be the responsibility of the section owner and successors in title to the section, and what areas the body corporate will be responsible to repair and maintain.
The trustees should also place conditions on the approval for the alteration and should require the applicant owner to agree to these conditions in writing as a condition of the authorisation of the body corporate. Such conditions may serve to ensure that:
- The building works start within a specified period, that they are completed before a specified date, failing which penalties may be payable.
- That work is limited to days and times that will not unduly disturb other residents.
- That power tools only be used during specified periods of the day.
- That rubble be removed regularly.
- That toilet facilities be provided for workers.
- That the scheme infrastructure is not overused or unduly abused.
- That the body corporate’s inspector oversees the work to ensure that its interests are protected at the applicant owner’s cost.
It is not unusual for the applicant owner to be required to pay a deposit to secure compliance with these obligations and to agree to pay additional contributions from a specified date, notwithstanding that the sectional plan of extension has not yet been registered. It is recommended that the applicant owner should agree that the unit concerned will not be transferred until the alteration process is completed.
If you are need us to assist in drafting a special resolution authorising the extension of a section, please contact us at firstname.lastname@example.org.
Article reference: Paddocks Press: Volume 11, Issue 09, Page 01.
Dr Carryn Melissa Durham is one of the most highly qualified Sectional Title Attorneys in the country (BA, LLB, LLM and LLD), Carryn forms part of the Paddocks Private Consulting Division.
This article is published under the Creative Commons Attribution license.