By Prof. Graham Paddock

What do you do, as a trustee or managing agent, when in a scheme you manage, an owner has created what appears to be a second ’informal’ lounge but has not legally extended the section? The new structure has a proper foundation and three solid walls. The roof is aluminum, but the fourth wall is closed by a waterproof blind. With the blind drawn, the area is completely waterproof and windproof.

The owner insists that this new structure is not part of the section but a ‘lapa’ adjoining the section and claims there is no legal obligation to extend the section. However, other owners think the area is being used as part of the section and are resentful that there is no increase in this owner’s participation quota and therefore his levies. They feel the owner has acted illegally and that they are financially prejudiced.

So how do you approach this question?

1. Check for municipal approval. Without this, the building should not be there at all.
2. Find out precisely what the municipality approved. How does the municipality describe the structure in its approval wording? How is the room marked and described on the plan?
3. Check whether the structure has affected the scheme’s FAR (Floor Area Ratio) / bulk factor. If so, this suggests it is an interior room that should be part of the section.
4. Check how the body corporate supported the municipal approval. Look at the meeting minutes authorising the trustees’ signature of the plans. These may describe what the trustees thought they were supporting.
5. Check whether the owner built the structure on an exclusive use area or unregulated common property.
6. See whether there are any other similar buildings in the scheme. Have these been approved and built without section extensions?
7. Consider the features that generally distinguish ‘inside’ rooms from ‘outside’ ones. Look at the floors and ceilings. Are the walls single courses or cavity walls? Is there provision for rainwater drainage, or are the floors covered with carpets? Are there skirting boards, cornices, and other features of an ‘interior’ building not usually found on an open stoep, patio or balcony? Does the room contain ‘interior’ furniture?

If, after making your enquiries, you need a professional opinion on any issue or assistance with making an application to CSOS to have the structure removed or legalised, please send a brief to consulting@paddocks.co.za.

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Graham Paddock is a specialist community schemes attorney, notary and conveyancer. He has been advising clients and teaching students for over 40 years, and was an adjunct professor at UCT for 10 years.

Article reference: Paddocks Press: Volume 17, Issue 9.

This article is published under the Creative Commons Attribution license.

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