Financial responsibility for solar geysers in sectional title – owner or body corporate?
By Jennifer Paddock
After Prof. Paddock wrote an article about creating exclusive use areas for solar power harvesting, our consulting inbox was flooded with enquiries from bodies corporate and unit owners wanting to install solar. But an issue popped up on Paddocks Club recently which I haven’t seen written about and that is the financial responsibility for solar geysers in sectional title schemes.
The question was:
We manage a scheme that has solar geysers. The actual geyser cylinder is installed inside the owner’s section but the solar panel that heats the water is installed on the common property roof. There is one solar panel for each section, connected to the respective geyser. In the event that a solar panel bursts and needs to be replaced, who is responsible to bear the cost, the owner or body corporate?
As many of you will know, prescribed management rule 31(1) made under the regulations to the Sectional Titles Schemes Management Act 8 of 2011 provides:
Notwithstanding that a water-heating installation forms part of the common property and is insured by the body corporate, a member must maintain, repair and, when necessary, replace such an installation which serves that members section or exclusive use area; provided that where such an installation serves sections owned or exclusive use areas held by more than one member, the members concerned must share the maintenance, repair and replacement costs on a pro-rata basis.
So the question is: does a solar panel (and its pipes, wires, cables and ducts connecting it to the geyser cylinder) form part of the ‘water-heating installation’ as contemplated in PMR 31(1)?
If the answer is yes, the section owner whose geyer is served by the solar panel would be responsible for any costs associated with the solar panel and connecting equipment. If the answer is no, then the body corporate would be responsible for these costs.
After receiving the question on Paddocks Club and reviewing the wording of PMR 31(1), I looked up the definition of ‘installation’ to ascertain whether it is wide enough to include not only the geyser cylinder but the solar panel and connecting equipment as well. One of the definitions according to Cambridge Dictionary is: “a system or piece of equipment that has been put somewhere”. Dictionary.com defines installation as: “something installed, as machinery or apparatus placed in position or connected for use”.
I would argue that a solar geyser is a ‘system’ of interconnected parts and an ‘apparatus connected for use’, meaning that it falls within the definition of ‘water-heating installation’ for the purposes of PMR 31(1). As such, it is my view that if the prescribed rules apply to a scheme with solar geysers, the owners of the sections served by those solar geyser systems are responsible for the maintenance, repair and replacement of all parts of that system despite part or all of the system being installed on common property.
This conclusion does not suggest that owners are entitled to simply install solar geyser systems on the common property without permission. In the opinions and rules I am working on for clients, we work on the basis that before installation a carefully drafted exclusive use rule needs to be adopted by the body corporate and approved by the Community Schemes Ombud Service. This rule not only creates the various exclusive use rights required but also includes a comprehensive set of installation procedures and conditions covering things such as accreditation of the installer, compliance certificates required, liability for maintenance, repair and replacement of the solar panels and associated equipment, liability for damage to the rooftop and any other common property as a result of the installation and responsibility for insurance related to the solar installation.
If your scheme would like my help in drafting an exclusive use rule and associated resolutions, feel free to email: consulting@paddocks.co.za for a fixed fee quotation.
Article reference: Paddocks Press: Volume 18, Issue 3.
Jennifer Paddock is a dual-qualified lawyer with experience working as a strata title managing agent and solicitor in New South Wales. Prior to this, she served as a specialist sectional title attorney and practice manager at Paddocks for five and a half years. She brings a wealth of knowledge and expertise to the Paddocks team. Contact her at consulting@paddocks.co.za.
This article is published under the Creative Commons Attribution license.
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