While most members of bodies corporate are aware of the fact that the body corporate is responsible for the maintenance of the scheme’s common property [per section 3(1)(l) of the Sectional Title Schemes Management Act, 95 of 2011 (“STSMA”)], confusion often rears its head when trying to figure out exactly what this “maintenance” includes or excludes. What exactly is the body corporate obliged and allowed to do to the common property? When does the work being done go from being “maintenance”, which the trustees have to ensure is done, to “an improvement of common property”, which they can only do if they have given 30 days notice of the improvement without receiving a request for a meeting to discuss same, or have obtained a special or unanimous resolution authorising the improvement?

In the 1997 case, Solidatus Body Corporate v De Waal and Others, Judge le Roux found the concept “maintenance” to be a general term with no exact or precise meaning in law, and in order to resolve the question of what exactly this entails, the judge explained that one should consider the context and relevant legislation as a whole and ask the question: what is the object that the legislature had in mind with the provision? While he was referring to a provision in the Sectional Titles Act 95 of 1986 at the time, one could certainly infer that his reasoning would also apply to the similar provision contained in the STSMA.

In the Solidatus-case, water penetration had caused damage to balconies within the scheme. The body corporate had obtained expert advice that the issues were the result of faulty workmanship, poor design and shoddy construction and that remedial works should be performed. A meeting of owners was subsequently convened and a resolution was passed by the members, authorising the trustees to have the remedial works done and to levy a special contribution from the holders of exclusive use rights in respect of the waterproofing and repair of those areas.

Some of these holders of exclusive use rights paid the levy under protest while others refused to make payment. A debate ensued regarding whether the body corporate’s allocation of liability for the repairs to the exclusive use areas was correct in terms of the act and rules. The trustees held that they are obliged to require owners entitled to exclusive use of parts of the common property to make contributions to defray the cost of maintenance of such areas and that “maintenance” includes repairs and remedial work to preserve the structure of the building; however the holders of the exclusive use rights objected to this interpretation and argued that expenses incurred in rectifying the bad workmanship and faulty construction cannot be classified as “maintenance” and that all the members should share the burden of these expenses.

The question that arose was whether or not “maintenance” can include structural alterations or major repairs to the building. In this regard, it is interesting to note the opinion expressed by Lord Brandon in the English case, ACT Construction Ltd v Customs and Excise Commissioners. In this case, Lord Brandon advised that it is possible to take up 2 extreme positions on the meaning of “maintenance”: one extreme position is to say that, if the work done involves an improvement to the building, it can never be maintenance, while the other extreme position is to say that, if the work has the purpose of remedying an existing defect in the building or preventing a future defect from developing, it must always be “maintenance”. He further advised that, in his view, neither of these extreme positions is correct and that “maintenance” should be given its ordinary and natural meaning.

Brandon further explained that, with regards to the first extreme position, there may be cases where the work done, although it involves improvement (for instance, because it involves the use of modern materials or methods), is nevertheless “maintenance” in the ordinary and natural meaning of the word. For example, if metal gutters have decayed over time and are replaced with plastic gutters, which cannot decay, this constitutes an improvement to the building, but would still be regarded as maintenance.

With regard to the second extreme position, Lord Brendon advised that there may be cases where, although the purpose of the work is to remedy existing or prevent future defects in the building, it nevertheless falls out of the scope of “maintenance” in the ordinary and natural meaning of that word. For example, if a building has a flat roof which leaks continuously and the owner decides to replace the flat roof with a pitched roof so as to eliminate that defect, then, although that work was designed to eliminate a defect, it would not, in Brandon’s view, be maintenance in the ordinary and natural meaning of that word.

Our view on the matter is to err on the side of caution. When maintaining the common property, think about whether what you are actioning is truly maintenance in the ordinary and natural meaning of the word. If you think that it may constitute an improvement, why not inform the members of what you intend to do? If no one requests an opportunity to discuss the matter within 30 days, you can go ahead knowing that you have complied with the legislation, and if someone does request a meeting to discuss it, you should have no problem obtaining the special resolution required, as the type of work you are proposing will not only be an improvement to the common property, but will also be done in lieu of required maintenance.

Should you require any advice on how to obtain such special resolution, or wish to discuss any related matter with a specialist community schemes attorney, don’t hesitate to contact our consulting department at consulting@paddocks.co.za for a no-obligation quote to provide the necessary legal assistance.

Article reference: Paddocks Press: Volume 14, Issue 03.

Specialist Community Scheme Attorney (BA (Law) LLB), Ané de Klerk, combines her work experience as a Portfolio Manager with knowledge of conveyancing and community scheme law.

This article is published under the Creative Commons Attribution license.

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