Member’s question:
If a person nominates themselves at an AGM (and they are in arrears) to stand as trustee and they are seconded by someone that is also in arrears with their contributions – can this person stand as a trustee?

Anton’s reply:
There is no requirement in the prescribed rules or the common law that a nomination must be seconded, but PMR 7 provides that no person in arrears with his or her levy may nominate or accept nomination nor be appointed as a trustee.

Please click here to read it. (Our members have direct access to The Act and Rules, which includes Graham’s commentary on the Act and links to the electronic Sectional Title Survival Manual, which mentions the text in question.)

PMR 7
7. Nominations by owners for the election of trustees at any annual general meeting shall be given in writing, accompanied by the written consent of the person nominated, so as to be received at the domicilium of the body corporate not later than 48 hours before the meeting: Provided that trustees are also capable of being elected by way of nominations with the consent of the nominee given at the meeting itself should insufficient written nominations be received to comply with rule 4(1): Provided further that no nomination or appointment as trustee, of a person in breach of rule 64(a) or 64(b), may be made or accepted.
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NOTE: The second proviso came into effect on 14 April 2013.

Sectional Title Survival Manual: 10.5.5 – Nominations for trustees
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Graham’s Comment on this section:
This rule cannot be altered by the developer on the opening of the sectional title register – see Regulation 30(1), but can be altered thereafter by the body corporate.

Illegal alterations to common property

Member’s question:
About 3 years ago an owner asked the then trustees for permission to do alterations to his unit, which is an end unit. Permission was given to convert a bedroom into a bathroom. (We are not concerned at all about the internal alterations.) No plans were obtained. The owner proceeded to put sewerage pipes down the outside of the wall (common property) using unregistered plumbers who used the incorrect type of pipe. The pipes were then laid across a municipal electrical sub-station and then joined up with the municipal drains outside the complex property. The current trustees asked the owner to get permission from the municipality that the alteration was correct in terms of their rules. The owner has not done so and has now sold his unit but the trustees refuse to give him a clearance certificate until he has obtained permission. The owner has gone legal to force us to grant the clearance certificate by using Section 15(3)(a) of the ST Act. Their claim is that this section only relates to “where all moneys due to the body corporate have been paid.” They claim that the alteration issue has nothing to do with the transfer but we as trustees are not convinced that the owner will rectify the issue. Can we with hold the clearance certificate? Can prescription change any of the above?

Anton’s reply:
This owner has not obtained the local municipality’s approval of the sewerage connection, even though the trustees have asked him to do so. What would make that owner sort out this mess once the transfer of his unit has gone through?

The sewerage connection from the median line of the wall forming the boundary of that section to the boundary of the scheme is on the common property and therefore the responsibility of the body corporate. At the moment that responsibility means forcing the owner to complete the alteration properly. The body corporate is going to have to correct it at its own cost if the owner does not. The body corporate is definitely entitled to withhold the levy clearance certificate until it is satisfied that the alteration is properly completed.

Prescription does not apply.

Member’s response:
One of the trustees has said that the ST Act does not permit the clearance certificate to be with held if all monies owning have been paid. Bearing this in mind & assuming all monies have been paid what section of the act states we can still with hold the certificate.

Graham’s reply:
The provision the trustee is referring to is section 15B(3)(a)(i), the relevant parts of which read: “The registrar shall not register a transfer of a unit or of an undivided share therein, unless there is produced to him a conveyancer’s certificate confirming that as at date of registration the body corporate has certified that all moneys due to the body corporate by the transferor in respect of the said unit have been paid, or that provision has been made to the satisfaction of the body corporate for the payment thereof.”

This is a restraint on the Registrar’s power to register the transfer of a unit without the relevant certificates. It does not require a body corporate to issue a clearance certificate.

In the circumstances your describe, where the trustees are sure that the work done by the owner does not have the necessary approval from the local municipality, the body corporate will have to do the work at its expense if the owner does not. So I suggest that although we don’t now know how much that work will cost, the owner has not paid all amounts due in respect of the unit and the body corporate is entitled to withhold the clearance certificate until the work is done. At the same time I suggest that the body corporate should do its best to get the local municipality officials to confirm exactly what work / plans are required and they should then get quotes necessary to quantify the costs involved.

If the owner’s lawyer decides to take the trustees to court, let him explain to the magistrate or judge that his or her client wants to leave the community with the alterations unapproved and make this the body corporate’s problem. I would be very surprised if, after seeing proof of the irregularities the owner has created, the court ordered the trustees to issue the clearance certificate.

Maintenance of garage rafters

Member’s question:
We have a situation where garages are either part of a section or free-standing sections. There are no ceilings in the garages and the rafters are sagging and need to be strengthened or replaced. Is this the owner’s responsibility because of the fact that they are within the section?

Jennifer’s reply:
It will depend on where the median line forming the boundary of the section is situated. Section 5(5)(a) of the Act states the boundary between a section and common property is the median line of the dividing floor, wall or ceiling. Obviously in this case there are no ceilings.

The SGO Manual for drafting sectional plans does not deal specifically with garages without ceilings but does deal with verandahs forming part of a section that do not have a ceiling. It states: “The limits of a section must always be shown by solid lines on the floor plan and the cross section drawings. This also applies to verandas without a roof / ceiling or a full wall.”

So my first suggestion would be to inspect the sectional plan and see if there are any cross section drawing or notes on the sectional plan that shed any light on the location of the median line. If not, call the land surveyor who prepared the sectional plan and ask them to look at their file for the scheme and see if there are any drafting notes.

If none of the above is fruitful, perhaps the body corporate should create a rule that deals specifically with the maintenance of the garage sections rafters so that moving forward a uniform approach is applied.