A recent Durban High Court case Marguerite Anne Catherine de la Harpe v Body Corporate of Bella Toscana (judgement delivered by Chetty J on 28 October 2014) dealt with the responsibility for repairing a seriously damaged “garden wall” located in a registered EUA. The wall is not a boundary wall, as the perimeter of the scheme is enclosed by a wire fence. Unfortunately the decision ignored first principles on responsibility for maintenance for EUAs.
The owner (the applicant) focused on the body corporate’s (the respondent) responsibility to insure the common property in terms of section 37(1)(f) of the Act, instead of focussing on the legal nature of the wall and placing the responsibility on the body corporate to maintain common property. The court placed both the physical/operational and financial responsibility for the repair to the EUA garden wall onto the owner.
This Carryn’s Corner contribution will therefore lay down the general principles on responsibility for maintenance of EUAs.
All the owners of sections in a scheme own all the common property in undivided shares. A defined part of the common property such as a parking bay or garden can be reserved for the exclusive use of a particular owner. An owner who has exclusive use rights to an area does not acquire ownership of that area – the EUA continues to form part of the common property.
An EUA is marked out and set apart from the balance of the common property. Exclusive use rights can be created in two ways in terms of the Act: either as registered rights to real property surveyed and shown on a sectional plan recorded in the Deeds Registry in terms of section 27 of the Act; or as personal rights shown on a scale lay-out plan included in and conferred by rules made under section 27A.
In terms of section 44(1)(c) of the Act an owner must repair and maintain his or her section in a state of good repair, and keep their EUA in a neat and clean condition. In terms of section 37(1)(j) the body corporate has the duty to properly maintain the common property and to keep it in a state of good and serviceable repair. Therefore, the body corporate retains the primary responsibility to organise for the maintenance of common property that is subject to exclusive use rights, while the owner who is entitled to exclusive use of an area of the common property is obliged to keep that area in a clean and neat condition.
The responsibility to pay for the maintenance of the part of the common property that is subject to exclusive use is transferred to the owner who has the benefit of the EUA. The proviso to section 37(1)(b) of the Act provides that owners who hold exclusive use rights are obliged to pay all the costs attributable to the areas over which they hold the rights. Each year the body corporate must collect these additional contributions equal to its estimate of the specified costs of insurance and maintenance of the EUA, including the provision of electricity and water in respect of every exclusive use area.
This is the position, unless a rule specifically states otherwise. If the rule provides for contributions that are less than the amount estimated by the body corporate in accordance with section 37(1)(b) of the Act, the body corporate must collect the balance of the estimated amount from the owner entitled to those rights. If the rules provide for a larger amount than is estimated by the body corporate in accordance with section 37, the owner must pay the larger amount.
The Act makes a clear distinction between an owner’s duties in regard to their sections and EUAs. Whereas under section 44(1)(c) an owner must repair and maintain his or her section in a state of good repair, adequate maintenance of an exclusive use area is, in terms of this section, to keep that area neat and clean. PMR 70(b) states that:
“If an owner fails to maintain adequately any area of the common property allocated for his exclusive use and enjoyment, and any such failure persists for a period of thirty days after the giving of written notice to repair or maintain given by the trustees or the managing agent on their behalf, the body corporate shall be entitled to remedy the owner’s failure and to recover the reasonable cost of doing so from such owner.”
In terms of section 35(1) of the Act no rules may conflict with any provision in the Act. Therefore, PMR 70(b) must be interpreted to mean that if an owner fails to keep his or her EUA in a clean and neat condition, the trustees or the managing agent can give that owner written notice to do so. If the owner persists in the failure for thirty days after being given notice, the body corporate can carry out the work and recover from him or her the reasonable cost of doing so.
In the judgement the owner alleged that the body corporate’ breach of duty in terms of PMR 70 was grounds for the appointment of an administrator in terms of section 46 of the Act. This is an incorrect interpretation of PMR 70 as it does not place a duty on the body corporate, but only “entitles” the body corporate to intervene and remedy the owner’s failure and, as I have explained above, this provision only requires that the body corporate intervene if the owner failed to keep the EUA neat and clean.
If an EUA requires repairs or maintenance that go beyond keeping it clean and neat, the body corporate cannot demand that the owner who holds rights to that area must carry out the work. As with any other area of common property, the body corporate is obliged to carry out the work in terms of section 37(1)(j), but when those works are on an EUA, the body corporate must recover the costs from the owner concerned in terms of the proviso to section 37(1)(b).
The body corporate incorrectly submits that the owner benefits from the wall more so than the other owners. Furthermore in paragraph 30 Chetty J states that: “… the responsibility for repairing and maintaining an exclusive use area falls on the owner who benefits exclusively from such use.” He states again in paragraph 44 that: “… the applicant is solely responsible for the costs of the repair and maintenance of her wall surrounding her exclusive use area in as much as she is the only person deriving a benefit from it.” These statements are incorrect as a wall is not an EUA merely because it is more beneficial to one owner above others, but rather because it is located on an EUA as shown on the sectional plan or in the scale lay-out plan or weaned from other extrinsic evidence.
The body corporate remains responsible for organising for the repair of the wall which forms part of the common property, and can then recover the costs from the owner. In this way the holder who enjoys the exclusive use rights is burdened with the costs of maintaining such EUA or a portion of the cost, depending on where the legal boundary of the EUA falls.
In paragraph 1 of the judgement Chetty J states that “good fences make good neighbours.” If the correct principles are followed in ensuring that fences (in this case exclusive use garden walls) are properly maintained by those who are operationally and financially responsible for their maintenance in terms of the legislation, then I am sure members of the body corporate will be able to mend fences and live in a more harmonious community of property.
Article reference: Paddocks Press: Volume 10, Issue 1, Page 5.
Image reference: www.onegoodthingbyjillee.com
Carryn Melissa Durham is a Specialist Sectional Title Lawyer (B.A LL.B, an LL.M), currently completing her Doctorate in sectional titles. Carryn heads up the Paddocks Private Consulting Division. For more information please contact Nicole on 021 686 3950 or firstname.lastname@example.org.
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