At a basic level, the Sectional Titles Schemes Management Act 8 of 2011 (“the STSMA”) provides that the body corporate must maintain the common property, and unit owners must each maintain their section.
This article, sets out the basic maintenance responsibilities of the common property and some of the more complex situations, where both the function of a utility service and its location are important when determining maintenance responsibilities.
Common property is defined in section 1 of the STSMA as follows:
“‘common property’, in relation to a scheme, means
(a) the land included in the scheme;
(b) such parts of the building or buildings as are not included in a section; and
(c) land referred to in section 5(1)(d).”
The body corporate has the power to purchase, hire or otherwise acquire movable property for the use of owners for their enjoyment or protection, or in connection with the enjoyment or protection of the common property in terms of section 4(c) of the STSMA. Assets acquired by the body corporate may also be incorporated into the common property and will need to be maintained by the body corporate.
For example assets may include the following:
- pool furniture for use around a common property swimming pool;
- a generator;
- gardening equipment;
- gym equipment; or
- adjoining land purchased to use as a tennis court or parking lot.
The body corporate must properly maintain all the common property and keep it in a state of good and serviceable repair in terms of section 3(1)(l) of the STSMA.
The STSMA does not distinguish between structural and non-structural maintenance and repair responsibilities. Therefore, any parts of a building that are structural in nature must be maintained by the body corporate or unit owner in a structurally sound condition depending on whether those parts of the building are common property or part of a section.
In terms of section 28 of the Sectional Titles Act 95 of 1986 (“the STA”) there are a number of implied servitudes, which are deemed incorporated in the title deeds of all owners, that operate between the sections themselves and between sections and the common property. Each section is entitled to support from any other section and any common property beneath it or next to it and which can support it. Equally, each section has a duty to give support to any other section or common property above or next to it and which it can support. In practical terms this means that an owner cannot change his section so as to reduce the structural support it gives any other section or the common property. This is reiterated in Prescribed Management Rule (“PMR”) 30(d) which obliges an owner not to make alterations which are likely to impair the stability of the building or the use and enjoyment of other sections, the common property or any exclusive use area.
In addition to maintaining the common property, the STSMA also assigns the body corporate the responsibility for maintaining the utility infrastructure within a sectional titles scheme.
Utility infrastructure includes:
- pipes, wires, cables and ducts;
- plant, machinery, fixtures and fittings and equipment used in connection with the common property and sections; and
- separate meters to record the consumption of electricity, water and gas.
Utility services include:
- water reticulation or supply;
- gas reticulation or supply;
- electricity supply;
- air conditioning;
- telephone service;
- a computer data or television service;
- a sewer system;
- a system for the removal or disposal of garbage or waste; or
- another system or service designed to improve the amenity, or enhance the enjoyment, of sections or the common property.
The body corporate must keep in a state of good and serviceable repair, and properly maintain the plant, machinery, fixtures and fittings used in connection with the common property, and sections in terms of section 3(1)(q) of the STSMA. While most of the utility infrastructure is considered common property for a sectional titles scheme and is therefore the body corporate’s responsibility to maintain, there are some exceptions.
The body corporate has the responsibility, subject to the rights of the local authority concerned, to maintain and repair (including renewal where reasonably necessary) pipes, wires, cables and ducts existing on the land and capable of being used in connection with the enjoyment of more than one section or of the common property or in favour of one section over the common property in terms of section 3(1)(r) of the STSMA.
Therefore the owner of the section will be responsible for the maintenance of pipes, wires, cables and ducts that:
- 1. only supplies a utility service to that section; and
- 2. is located in that section.
Also, the system that supplies a section with hot water must be maintained by the owner of the section it supplies, irrespective of where it is located. If the system supplies more than one section, the owners of those sections share the responsibility and costs.
The body corporate must, if so directed by a resolution of members, install and maintain separate meters to measure the supply of electricity, water, gas or the supply of any other service to each member’s sections and exclusive use areas and to the common property in terms of PMR 29(3)(a). The body corporate must recover from members the cost of such supplies to sections and exclusive use areas based on the metered supply in terms of PMR 29(3)(b).
The body corporate may on the authority of a special resolution install separate pre-payment meters on the common property to control the supply of water or electricity to a section or exclusive use area in terms of PMR 29(4). All members and occupiers of sections must be given at least 60 days notice of the proposed resolution with details of all costs associated with the installation of the pre-payment system and its estimated effect on the cost of the services over the next three years.
In order to establish maintenance responsibilities, the common property and sections in a scheme must be accurately identified. The registered sectional plan for a sectional titles scheme must clearly show the boundaries of the common property and the sections in the scheme.
Should you require consulting services to establish where a maintenance responsibility lies, please contact us at firstname.lastname@example.org.
Article reference: Paddocks Press: Volume 12, Issue 04, Page 02.
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.