By Steve Broekmann
The waterproofing is not there for the benefit of the owner with the balcony. It is there for the benefit of the owner or owners of property underneath. The person allocated the exclusive use of the balcony gets no “use and enjoyment” from the waterproofing at all. What is more, he or she usually isn’t in any way to blame for the problems. It is, as often as not, a result of poor design or bad workmanship by the developer or building contractor, rather than any neglect on the part of the owner.
The faulty waterproofing can cause mould or damp in the walls that can ruin paint, ceilings and carpets. Fixing the problem often necessitates lifting all the tiles on the balcony (many of which can break in the process), removing the old waterproofing and laying a new one. Then the tiles, or new ones because the old ones broke or can’t be properly matched, are re-laid.
All of that costs money. The question is, who pays?
The answer ought to be simple, but it isn’t. In my experience, the usual response of managing agents to the question of who pays is that the “owner” of the balcony must pay.
But the answer is not that clear cut. Unfortunately, before you can answer the question, you need to know what kind of balcony rights apply. And even then there will be grey areas.
A balcony right could be any of four different kinds. The balcony could be :-
A incorporated within a section;
B a registered exclusive use area (EUA) in terms of Section 27 of the Sectional Titles Act (“the Act”);
C an EAU created by the rules of a scheme either under the 1971 version of the Act or in terms of S27A of the current one, or
D simply an area to which, for all practical purposes, only the owners of the adjacent sections concerned have access.
A type A balcony will fall within the area of the section covered by the sectional title deed of transfer. The type B, C and D balconies form part of the common property.
Section 44 (c) of the Act provides that an owner must:
“repair and maintain his section in a state of good repair and, in respect of an exclusive use area, keep it in a clean and neat condition;”
Clearly, therefore, if a balcony forms part of a section, the owner must “repair and maintain” it. As a section is defined in the Act as extending to the midline of the balcony slab, if the waterproofing layer is above the horizontal midline, which it usually is, the owner picks up the costs of repairs. So in a type A balcony, the registered owner of the section pays.
One would think that the distinction drawn between a section and an exclusive use area in S44(c) would signify that a different level of care applied to an EUA in terms of S27 or S27A of the Act. In particular, one might imagine that an obligation to keep a type B or C EUA balcony “clean and neat” would not saddle the owner with having to pay for repairs that benefit only owners below. After all, the word “repair” is omitted from the second half of S44(c), and S37(1)(j) of the Act provides that common property repairs are the responsibility of the trustees. However, this is not how things have turned out at least as far as a type B balcony is concerned.
Since the controversial court decision in Body Corporate of the Solidatus Scheme No. SS23/90 v De Waal & Others  3 All SA 91 (T), known as the “Solidatus” case, a precedent has existed which renders the “owner” of an EUA liable for contributing to a fund for the costs of balcony maintenance, including the maintenance of the waterproofing layer despite the fact that it is there for the benefit of owners below. That means that, until another court comes to a different conclusion, or the Act is amended, the answer in the case of a type B balcony right is that the registered owner of the EUA is the person who pays.
It seems a harsh decision: the payer gets no benefit from the expense. But until some change occurs it will just have to be accepted as a negative aspect of the ownership of a balcony. There is some logic to the rule, however. In terms of Regulation 5(1)(m) of the regulations made in terms of the Act a S27 EUA is defined in a similar way to a section, namely to the midline of the slab. So in the case of a S27 registered balcony right, the waterproof layer will usually be within the EUA, as it would be in a section. As was pointed out by the court in Solidatus, registered EUAs are “so closely akin to full ownership as to be virtually indistinguishable”.
The body corporate may itself contract for the repair work, but what Solidatus held was that the owners of such balconies can be obliged to contribute to a fund for the purposes of meeting that expense. The decision turned on S37(1)(b) of the Act, which provides, amongst other things, that the body corporate must require owners to contribute to a fund for various expenses relating to their entitlement to the exclusive use of part, or parts, of the common property, including its maintenance, unless in terms of the rules, owners are made responsible for such costs. Such a rule is seldom found and no such provision appears in the “default” rules – i.e., the rules that apply automatically to all schemes except to the extent that the developer, or the body corporate, has explicitly amended or supplemented them.
But what about types C and D balconies?
The type C and D balconies do not fall within the precedent set by the Solidatus case. Although a type C balcony is subject to the S37(1)(b) obligation to fund maintenance, the area of the balcony will not usually be defined so as to include the “use” of the balcony slab to the midline. If it is, of course, the type B balcony rules apply. If not, however, that means that the owner of such a type C balcony will not necessarily have to fund repairs to the waterproofing in accordance with the Solidatus decision. Furthermore, prescribed management rule 70(b) only implies a duty on an owner for maintenance of the “area” of the common property set aside for his or her exclusive use. Similarly, S37(1)(b) of the Act only renders an owner liable for the costs of maintaining “part or parts of the common property” to which he has the right of exclusive use. That may not include, in either case, the waterproof layer within the floor of the balcony.
There is no express provision in the Act or Regulations that such an EUA extends to the mid-point of the slab, unlike the position with a registered EUA or section. Nor would anything under the tiles be of any use at all to the person allocated the balcony. It therefore could not have been an area of the common property contemplated in Rule 70(b) or necessarily a part of the common property contemplated in S37(1)(b).
In the absence of any specific definition of the extent of such EUAs in the Act or the Rules, it seems arguable that a type C balcony includes only the usable area of the balcony.
If that analysis is correct, the mid-point of the slab is irrelevant and such balconies simply constitute common property. They are governed only by any specific management rules of the scheme that may apply. The general principle of law is that risk lies with an owner – i.e. the body corporate. The waterproofing repairs would thus be the body corporate’s responsibility. In most type C and D cases the obligation of the balcony “owner” would simply be the common law one of reasonable user. That would include keeping the usable area clean and neat, as contemplated by S44(c) of the Act. It is reinforced by S37(1)(j), which imposes on the trustees the task of maintenance of the common property.
So if you are getting damp from upstairs, first find out what is causing it. If it arises from a defect within a balcony forming part of the common property but not one registered in terms of S27 of the Act, or within a section, the responsibility to remedy the problem may well lie with the body corporate. If it is a problem above the midpoint of the slab in the case of a type A or B balcony, the section owner will have to foot the bill unless, perhaps, it can be attributed to a common property “installation” problem within the section. Whether a waterproofing layer on a balcony could be such an installation or constitute common property on some other basis, would be a discussion that falls outside the scope of this article, but it might be arguable. It’s a moot point.
If your request for repairs doesn’t get the desired response, perhaps giving your trustees or managing agent a copy of this article might help! At the least the ventilation of the issue might in due course lead to a sensible and unambiguous rule.
Article reference: Paddocks Press: Volume 5, Issue 8, Page 1
Steve Broekmann was admitted as an attorney (1973) and Notary (1974), becoming a partner of Bell Dewar in 1975. In 1988 he commenced practise on his own as Broekmanns. He is Chairman of the Board of Trustees of The Piazza on Church Square Body Corporate and a trustee of The Adderley Body Corporate.