One of the functions of a sectional title body corporate is to maintain the common property, including common property machinery, plant (in the machinery context), fixtures and fittings. This provision makes total sense because it removes the possibility of neglect of the common property by owners unwilling or unable to do their share of maintenance. In traditional sectional title schemes – the ordinary block of twelve flats – it’s just not practical or cost effective for owners to maintain individual parts of the common property. Additionally, many of the maintenance operations in the traditional block of flats are too difficult or too expensive for individuals to perform.
But where it could be sensible that owners undertake the maintenance of specific portions of common property, or arrange that it is undertaken, and pay the costs directly, and where the particular circumstances of the scheme justify it, is there a way to allow it? We believe that there is.
The first consideration is how owners may be authorised to perform maintenance of common property.
The body corporate has the power to appoint agents and employees, and delegate its powers and functions.
The body corporate itself, as a juristic person, cannot do anything as it is a legal, not a physical entity. It must appoint, employ or contract with persons and service providers who will perform the operations for which the body corporate is responsible. There is no provision in the Sectional Titles Act or prescribed rules that requires all these appointees, employees and contractors to be external professionals. Owners can be, and are appointed in this regard.
The second consideration is how to allow owners to directly pay the actual costs of the maintenance they perform, rather than the contribution they pay in terms of the participation quota.
The participation quota determines three things, or has three effects. They are, the extent of the undivided share each owner has in the ownership of the common property; the value of each member’s vote; and the proportion of the total levy each owner is liable to pay. The second and third effects can be changed by making a rule in terms of section 32(4) of the Act. Authorising the rule requires a special resolution as well as the written consent of any owner adversely affected by the terms of the rule. Such a rule could make individual owners liable for specific expenses, such as the maintenance of the roof in the case of the building comprising only their section.
Another, and perhaps more logical method, would be to make the envelope of that building subject to exclusive use in favour of the owner of that section. Section 37(1)(b) requires the body corporate to recover its costs in respect of an exclusive use area from the owner who holds the rights to that specific portion of the common property, unless in terms of the rules, the owner is responsible for those costs. The Act therefore accommodates the idea of owners paying expenses relating to exclusive use areas directly.
The delegation of maintenance tasks and the payment arrangements can be entrenched in the schemes rules, preferably the management rules since these are not conduct issues.
When making these rules, one must remember that these arrangements would be a departure from the fundamental nature of how sectional title schemes are intended to work, and are dependent on the physical nature of the scheme, or the portions of common property intended for owner maintenance, as well as the agreement of the whole community by unanimous resolution.
Article reference: Paddocks Press: Volume 10, Issue 11, Page 2.
Anton Kelly is an extremely knowledgeable specialist Sectional Title and HOA teacher and consultant. Having been the lead teacher on all the Paddocks courses for the last 5 years, Anton lives and breathes Sectional Title and HOA law, all day every day. There are not many issues he hasn’t come across before.
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