This article seeks to address what a body corporate can do when an owner does not maintain their section. The provision that deals with this situation has recently undergone various changes.

Previously, Prescribed management rule (“previous PMR”) 70, made under the regulations to the Sectional Titles Act 95 of 1986 (“the ST Act”) provided a remedy for the body corporate, where an owner failed to maintain their section or exclusive use area, and stated that:

“If an owner (a) fails to repair or maintain his section in a state of good repair as required by section 44(1)(c) of the Act; or (b) fails to maintain adequately any area of the common property allocated for his exclusive use and enjoyment, and if any such failure persists for a period of thirty days after the giving of written notice to repair or to 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.”

This rule gave the trustees a way of enforcing duties set out in the ST Act. There was a distinction between an owner’s duties in regard to sections, and those in regard to an exclusive use area. Whereas under section 44(1)(c) of the ST Act, an owner was responsible to repair and maintain his or her section in a state of good repair; adequate maintenance of an exclusive use area was, in terms of this section, to keep that area neat and clean. If an exclusive use area required repairs or maintenance that go beyond keeping it clean and neat, the body corporate could not demand that the exclusive use holder carry out the work. As with any other area of common property, the body corporate was obliged to carry out the work in terms of section 37(1)(j), but when those works were on an exclusive use area, the body corporate could recover the costs from the owner concerned in terms of the proviso to section 37(1)(b) of the ST Act.

Previous PMR 70, containing the restriction of the scope of owners’ obligation to maintain an exclusive use area was amended, with effect from 30 July 2015, to state:

“If an owner (a) fails to repair or maintain his or her section in a state of good repair as required by section 44(1)(c) of the Act; or (b) fails to maintain adequately any improvement on any area of the common property allocated for his or her exclusive use and enjoyment, and if any such failure persists for a period of thirty days after the giving of written notice by the trustees or the managing agent on their behalf to repair or to maintain, as the case may be, the body corporate shall be entitled to remedy the owner’s failure and to recover, subject to section 37(1)(b), the reasonable cost of doing so from such owner.”

This change sought to introduce a new responsibility for owners, namely to maintain improvements on their exclusive use areas. The owner’s liability was therefore restricted to improvements to the exclusive use area, and excluded maintenance of the area itself. This provision failed to take account of the provisions of section 44(1)(c) of the ST Act in terms of which it is the duty of an owner to “repair and maintain his section in a state of good repair and, in respect of an exclusive use area, keep it in a clean and neat condition.” It remains the duty of the body corporate, in terms of section 37(1)(b) of the ST Act, to require from the holders of exclusive use areas to make such additional contribution to the fund as is estimated necessary to defray the costs of insurance and maintenance in respect of any such exclusive use areas. It is not possible to amend a statutory provision with the adoption of a rule.

In October 2016, the Sectional Titles Schemes Management Act 8 of 2011 (“the STSM Act”) came into operation. Prescribed management rule (“PMR”) 31(2) now deals with the recourse available to the body corporate where an owner fails to maintain their section, and states:

“If despite written demand by the body corporate, a member refuses or fails to (a) carry out work in respect of that member’s section ordered by a competent authority as required by section 13(1)(b) of the Act; or (b) repair or maintain a section owned by that member in a state of good repair as required by section 13(1)(c) of the Act; and that failure threatens the stability of the common property, the safety of the building or otherwise materially prejudices the interests of the body corporate, its members or the occupiers of sections generally, the body corporate must remedy the member’s failure and recover the reasonable cost of doing so from that member; provided that in the case of an emergency, no demand or notice need be given to the member concerned.”

The provision relating to an owner’s failure to maintain improvements to their exclusive use area has been removed. The requirement now only relates to an owner’s responsibility to:

• carry out all work that may be ordered by any competent authority in respect of his or her section;
• to repair and maintain his or her section in a state of good repair; and
• in respect of an exclusive use area, to keep it in a clean and neat condition.

This provision introduces two specific criteria: one or both of which must be met, before the trustees may spend body corporate funds to undertake responsibility for the carrying out of maintenance or repair of a section. The trustees should not exercise the body corporate’s powers under this rule unless to do so is clearly in the best interests of the body corporate. An example of such a situation would be where an owner has removed a load bearing wall within his or her section, and refuses to restore it.

Previously, the body corporate did not have to get involved, but was entitled to. Furthermore, the trustees would only exercise the body corporate’s powers under this rule if the owner concerned had been given written notice, and failed to do the maintenance or repairs. Now the trustees must get involved if the failure threatens the stability of the common property, the safety of the building or otherwise materially prejudices the interests of the body corporate, its members or the occupiers of sections generally.

The trustees should not get involved if the lack of maintenance does not involve the common property. However, the body corporate should definitely get involved if there is an immediate threat to the common property. Finally, the trustees should ensure that the body corporate’s interests are not prejudiced before they commit its resources to dealing with the issue.

This is one of the few instances in which a rule specifically authorises the body corporate to intervene without the authority of a court or adjudicator’s order, indicating the high priority the legislature has accorded the adequate maintenance of sections in a scheme.

If your body corporate requires assistance in this regard, please contact us at consulting@paddocks.co.za.

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Article reference: Paddocks Press: Volume 12, Issue 06, 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.

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