By Prof Graham Paddock
In a sectional title scheme, one person owns several units and subsequently has the majority vote at meetings. Ultimately, this one owner controls the whole scheme, to the detriment of the remaining owners. This owner refuses to maintain the scheme, i.e. painting and much needed maintenance.
This majority owner has, in the meantime, also submitted a claim to the insurance company in respect of damage to one of his own units, which was caused due to suspect conditions, to which the other owners obviously have no insight into.
The managing agent is also complaining as they have not held a general meeting for the past two years, as this one owner vetoes any such attempt to have a meeting. Financial statements cannot be passed and other important decisions cannot be taken as no meetings are held. This majority owner is blatantly acting in his own interest, which is against the provisions of the Act.
The problem that now arises is that the other owners have no power to stop this majority owner, as the Act does not provide any mechanism or penalty in respect of such actions.
It appears that the only mechanism available is to take the matter to arbitration. Is this the only option available to the owners, or are there other alternatives? How do the other owners demand that AGM’s are held? Basically, they want to stop this one owner from controlling the whole scheme to his own benefit.
I’m not sure that arbitration is going to be the best solution under these circumstances. Below are two possible alternatives.
If, as a result of the dominance of one owner, the scheme is experiencing financial difficulties, it may be possible to persuade the High Court to appoint an administrator in terms of Section 46 of the Sectional Titles Act to take over the management of the scheme from the owners and trustees and get it back on its feet again.
The “other owners” could requisition a special general meeting in terms of PMR 53, assuming this is applicable but as you say there would be little purpose in this if the dominant owner was able to effectively veto all the proposed motions. If the dominant owner has bank mortgage bonds registered over his or her units the trustees or other owners could contact all bondholders, explain the situation and ask them to exercise their proxy votes at a meeting.
2. Why should owner pay for exterior maintenance?
Member 1 Question:
I am aware of the new amendment in the Act 5(5). However, please advise who is responsible for the maintenance or replacement of window frames on the outside due to damage caused by weathering?
It seems unfair to charge half the owners (only weather facing side) of a BC 50% of the cost of replacing and waterproofing window frames.
Good question. The intent of the amendment was to stop the haggling about exactly where the window frame is in relation to the outer walls and to make the owner and the body corporate share maintenance and repair costs equally. And since I drafted the amendment with this in mind, it is logical that I think (and hope) that is the effect.
Your question, put otherwise, is: “if the window is affected by weather and this causes more wear on the outside than the inside, for example the need to re-paint or re-varnish more regularly on the outside half of the frame, should the body corporate not pay all the costs, because the actual damage is only to the outside half that is common property?”
My answer is that, in practice, the window frame is one indivisible object and in order to maintain its strength and resist damp throughout its structure and to keep it working properly all parts of it need to be kept in good shape – inside and out. So, when damage occurs or maintenance is required to any part of the window, the costs must be shared equally by the body corporate and the owner concerned because it is in both of their interests that the window frame be kept in good shape.
Member 1 Question:
Thanks for your reply.
Because the window frames are all partly common property, no owner is entitled to take out the old frames and replace them without the prior agreement of the body corporate.
This would, most logically, be budgeted for and done for the whole scheme at the same time, with costs shared between the body corporate and each individual owner on a “per window” basis. If the body corporate allows owners to initiate individual replacements of wooden window frames with aluminium ones, the danger is that the appearance of the building will be negatively affected.
Member 2 Question:
Does this apply to replacing damaged exterior doors as well? The damaged is due to wear and tear.
Yes, it does.
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