Q&A with Jennifer Paddock – 2009 12

Q1: Are walled gardens owned by unit owners or do they form part of the common property? I own a semi-detached townhouse in a complex of 65 units and have a front garden and back garden. The complex has 2 full time gardeners who only mow lawns once a week.  For the rest I obviously buy my own plants and shrubs and maintain my gardens.  Are these private gardens common property? The complex has a lot of other common property. My concern is others rights to my private property.

A1: Garden areas in sectional title schemes are generally common property, which is owned by all owners in undivided shares. Whether or not the garden areas are subject to exclusive use rights is something you can determine by inspecting both the schemes rules and the sectional plan. When inspecting the scheme’s rules you will be looking for rules made in terms of section 27A of the Sectional Titles Act 95 of 1986 (the Act) granting exclusive use rights in favour of the owners of particular sections. When inspecting the sectional plan you will be looking at whether or not the garden areas are marked as exclusive use areas. If they are then the owners who benefit from those rights have exclusive use rights granted in terms of section 27 of the Act. Section 27 exclusive use rights are different to section 27A exclusive use rights in that they can be bonded.

If the garden areas are exclusive use areas then although all owners actually own the gardens in undivided shares, the usage of those gardens is limited to the holders of the exclusive use rights. If the garden areas are not exclusive use areas then they are unregulated common property, owned by all owners in undivided shares, and theoretically all owners are able to use them. The fact that the gardens are walled off means that these areas are inaccessible to other residents in the scheme and that the owner of the section next to the walled off garden area has what is called de facto or ‘factual’ exclusive use of the area. If this is the case this situation should be regularised so that the owners are granted de lege or legal exclusive use rights either in terms of section 27 or section 27A of the Act. 

Parking problems

Q2: One owner has three cars. One is parked in his parking bay and the other two in visitors’ bays. One of the cars parked in a visitor’s bay is not mobile. Do the trustees have the authority to remove this car?

A2: According to municipal regulations, a certain number of visitors’ parking bays must be available for visitors to each sectional title scheme. Parking an immobile vehicle in a visitor’s bay is an effective breach of the municipal regulations.

Prescribed conduct rule 3(2) allows the trustees to remove or tow away a vehicle that is parked without their consent or has been abandoned on the common property, at the risk and expense of the owner of the vehicle. Based on this rule, the trustees may consider employing the services of a towing company that has a secure storage facility to remove the vehicle. However, implementing this rule is not always simple, as the trustees would most likely have to pay the towing company upfront and then attempt to recover this expense from the owner concerned. There is also the possibility that the vehicle may not be claimed.

I would suggest that before the trustees consider having this vehicle removed or towed they speak to the owner of the vehicle and inform her/him that s/he is breaching the scheme’s rules as well as the municipal regulations. If that does not produce results then the next step would be a letter demanding that the car is removed failing which the trustees can arrange for it to be towed.

   
Blocked sewerage pipes

Q3: My sewerage pipe has now been blocked 3 times in the last year. I have just found out that my neighbour is on the same sewerage line in a sectional title complex. Who is responsible for payment?

A3: In terms of the provisions of the Sectional Titles Act 95 of 1986, the law relating to pipes in sectional title schemes is as follows:

1. If the pipe is part of your section it is your responsibility unless the pipe serves a number of parts of the scheme (ie. more than one section), then it is the body corporate’s responsibility.
2. If the pipe is outside your section (ie. on the common property) the body corporate must maintain and repair it even if it only serves your section.

From your question it sounds as if the sewerage pipe serves your section as well as your neighbour’s section and therefore I am assuming that the pipe serves more than one section. Based on the principles set out in 1 and 2 above, whether this pipe forms part of your section or it forms part of the common property, the body corporate is responsible to maintain it as it serves more than one section.

Article reference: Volume 4, Issue 12, Page 6.

 

 

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