By The Paddocks Club Team
Below are examples of two questions on the Paddocks Club discussion forum. We want to show you what is available to our Community members!
We have a problem with unit owners insisting that the gardens of one row of units have been pushed into the servitude to give extra garden space. This is of course exclusive use area but part of the common property. As there is no servitude marked anywhere on the plans is this a problem. The complaining unit owners are also insisting that this should be a participation quota matter and that the relevant unit owners should be paying higher levies. I think this is wrong as the participation quota is based on the area of a unit plus the garage, not the exclusive use garden area. Please could you clarify, and let us know what the position is if the developer built over what should be the servitude, or could the servitude be moved to the other side of the property where there is actually an “alley” behind the units on that side.
The exclusive use areas are marked on the sectional plan if they are registered rights, or on a scale drawing lodged with the rule if they are rule based rights. In either event, the owners only have the exclusive use of the area “delineated”. If they have extended their use, they should take EU rights over the extended area.
You’re absolutely correct that EUAs don’t affect the PQ, which is based on floor area of sections, in residential schemes. But in terms of section 37(1)(b), owners must be charged an additional contribution to pay all the body corporate’s costs in respect of their EUAs. This is not the levy, it is a different contribution, in addition to the levy.
If there are any servitude areas in the scheme, they will be marked on the sectional plan and there will be a reference to them in the section 11(3)(b) certificate which is in the scheme’s register. One would need to check the sectional plan as well as the register to be sure.
Maintenance and repair of pipes
Section 37(1)(p) of the STA amongst other things makes it the BC’s responsibility to maintain and repair pipes ‘in favour of one section over the common property’.
The management rules of the BC make the owner responsible for the maintenance of his exclusive use area ‘as if it formed part of his section’.
Does 37(1)(p) override the management rules, so that a pipe within an owner’s exclusive use area (for example in his servants quarters allocated exclusively to him in terms of the rules) remains the responsibility of the BC?
Does the fact that a pipe is underneath the exclusive use area (for example beneath the kitchen yard leading into the kitchen of the section) make any difference?
The Act always overrides management rules. Section 35(1) provides that a scheme is managed by means of rules but, “…subject to the provisions of this Act…”
There can’t be a valid rule that says owners must maintain their exclusive use areas as if it forms part of the section because that is in direct conflict with section 37(1)(j); exclusive use areas are common property and therefore the responsibility of the body corporate to maintain. But the owners must pay for the b/c maintenance of their EUAs, of course, because of section 37(1)(b). There is commonly some confusion regarding maintenance of EU gardens because the line between maintenance and gardening (which the owner usually does) is not clear.
The real question is whether the owner must pay for b/c maintenance of pipes under exclusive use areas. If the pipe is there because of the use of the area, then yes. Otherwise not. An example would be a pipe that leads only to a garden tap. The tap exists for the garden and the owner has exclusive use of the garden area.
A pipe that leads under an exclusive use kitchen yard, whether it’s a water supply pipe or a waste pipe is not part of the use of the area, so remains the body corporate’s responsibility to repair and to pay for.
Article reference: Paddocks Press: Volume 10, Issue 12, Page 4.
Professor Graham Paddock, Anton Kelly, Carryn Durham and Zerlinda van der Merwe are available to answer questions on the Paddocks Club discussion forum for Community members. Get all your questions answered by joining Paddocks Club.
This article is published under the Creative Commons Attribution license.