In this Carryn’s Corner contribution I would like to address an issue that is currently a much debated topic for all South Africans:
Eskom’s “scheduled” load shedding and the interrupted electricity supply that results therefrom
It has been reported in the media that these “scheduled” blackouts will be a reality for all South Africans for the next two years. It seems that we all need to make alternative plans.
In an attempt to offer possible solutions to this problem I will deal with what is required for bodies corporate to authorise alternative power sources, such as generators, in sectional title schemes.
In the first place I will set out the provisions that the trustees should consider before allowing the installation of a generator.
There are three considerations:
1. In terms of section 44(1)(c) of the Sectional Titles Act an owner must not use his section or exclusive use area, or permit it to be used, in such a manner or for such purpose as shall cause a nuisance to any occupier of a section.
2. In terms of PMR 68(1)(iv) and owner must not do anything to his section or exclusive use area which is likely to prejudice the harmonious appearance of the building.
3. In terms of PCR 5 the owner or occupier of a section used for residential purposes shall not place or do anything on any part of the common property, including balconies, patios, stoeps, and gardens which, in the discretion of the trustees, is aesthetically displeasing or undesirable when viewed from the outside of the section.
In the normal course of events I would advise that generators are unsightly and would cause a noise nuisance in a sectional title scheme. But, under the circumstances, it would seem reasonable to grant owners permission to use generators for the periods that the electricity is off, subject to certain restrictions.
Before the body corporate makes a decision on whether generators are allowed within a scheme they should consider these three provisions, and weigh the possible noise, fume and appearance factors against the need for owners and occupiers to have an uninterrupted electricity supply.
It must also be noted that not all schemes, due to their physical features, are able to facilitate a generator for each section. Large, multi-storey buildings might only be able to have generators installed for the ground floor units. The other owners and occupiers would then be asked to tolerate the nuisance, but would not enjoy the benefit of the energy supplied.
It is for this reason that the trustees should do a feasibility and costs study on a single generator that could service the whole scheme. The cost involved could be substantiated due to the fact that this generator will be necessary for the next two years.
If the trustees have considered all these aspects and want to authorise a single generator to be installed in the scheme, the next question is what level of consent is required to authorise the generator?
There are two approaches in this regard:
In the first place the installation of a generator could be considered a non-luxurious improvement to common property. The procedure set out in PMR 33(2) will need to be followed to authorise the installation of the generator. However, a generator is unlikely to be seen as a permanent addition to the building, and therefore as an improvement to the common property.
The better approach, in my view, is that the installation of a generator could fall into the powers and duties that the trustees have with regard to the management of the scheme.
The trustees can install the generator in terms of section 38(1)(c) of the Act, which provides that the body corporate has the power to purchase movable property for the use of owners for their enjoyment or protection, or in connection with the enjoyment or protection of the common property.
The maintenance of the generator can be dealt with in terms of section 37(1)(o) which provides that the body corporate must keep in a good and serviceable
repair and properly maintain the plant, machinery, fixtures and fittings used in connection with common property and sections.
As to funding this generator I suggest that the trustees convene a SGM with notice that a section 39(1) directive needs to be passed to authorise the trustees to use the reserve fund for this expense. If there is no reserve fund the trustees could raise a special levy if the expense is necessary and unbudgeted.
Where individual generators can be installed my recommendation is that the body corporate make a conduct rule that deals with the installation of generators for each section. In this way a special resolution is obtained and 75% (reckoned in both number and value) of the owners “buy into” the installation of the generators.
The rule could set out:
1. The type of generator that is permitted;
2. the placement of the generator;
3. limitations on the times in the day that the generator can be operated;
4. the maximum duration that the generator can be used at one time; and
5. the proper maintenance of the generator.
Load shedding has become an unfortunate reality in South Africa. Property owners are entitled to make their own provision for electricity; why should owners in sectional title scheme not enjoy the same right?
Article reference: Paddocks Press: Volume 10, Issue 2, Page 4.
Image reference: www.history.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 consulting@paddocks.co.za.
This article is published under the Creative Commons Attribution license.
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