Maintenance duties in Sectional Title schemes: Key responsibilities and liabilities
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Understanding Common Property
In sectional title schemes, "Common Property" refers to areas and components that serve all owners and are not part of individual sections. According to the Sectional Titles Act No. 95 of 1986, this includes the land on which the building is situated, the outer structure of the building, the roof, and the foundations. The Sectional Titles Schemes Management Act No. 8 of 2011 (STSMA) echoes this definition, emphasizing the importance of maintaining these shared spaces.
The boundaries between a section and common property are essential to understanding maintenance responsibilities. Generally, the boundaries extend to the middle of the floor, walls, and ceiling. For instance, in a freestanding unit, the inner half of the walls is part of the owner's section, while the outer half is common property. Consequently, owners are responsible for maintaining their sections, while the body corporate must care for the common areas.
Maintenance Responsibilities
The STSMA delineates the maintenance duties of the body corporate and the owners. The body corporate is obligated to keep all common property in good repair, while individual owners must maintain their sections to a similar standard.
A critical aspect to consider is that if an issue arises-such as a leaking shower damaging the unit below-the owner is responsible for repairing their section, while the body corporate is responsible for addressing leaks from the common property, such as a roof leak.
Liability for Consequential Damage
While the STSMA clearly assigns maintenance responsibilities, it does not explicitly address liability for consequential damage caused by defects in common property. If an owner experiences damage-such as rising damp from common property defects-they may not automatically hold the body corporate liable. In such cases, the owner must explore common law remedies.
To pursue a claim for damages, the owner must prove that the body corporate's negligence in maintaining common property led to the damage. If the body corporate declines to cover repair costs, the owner can either enforce their common law rights or file a complaint with the Community Schemes Ombud Service (CSOS).
Resolving Disputes Through the Ombud Service
The CSOS provides a framework for owners to address disputes with the body corporate. Section 38 of the Community Schemes Ombud Service Act 9 of 2011 allows affected parties to submit an application concerning the management of the community scheme. A "dispute" is defined as any disagreement related to the administration of the scheme involving the body corporate, owners, or occupiers.
If an owner seeks reparative action, they may request specific orders from the Ombud, including one that compels the body corporate to undertake necessary repairs and maintenance in both private and common areas, as outlined in Section 39.
While the STSMA clearly assigns maintenance responsibilities, it does not explicitly address liability for consequential damage caused by defects in common property. If an owner experiences damage-such as rising damp from common property defects-they may not automatically hold the body corporate liable. In such cases, the owner must explore common law remedies.
To pursue a claim for damages, the owner must prove that the body corporate's negligence in maintaining common property led to the damage. If the body corporate declines to cover repair costs, the owner can either enforce their common law rights or file a complaint with the Community Schemes Ombud Service (CSOS).
Resolving Disputes Through the Ombud Service
The CSOS provides a framework for owners to address disputes with the body corporate. Section 38 of the Community Schemes Ombud Service Act 9 of 2011 allows affected parties to submit an application concerning the management of the community scheme. A "dispute" is defined as any disagreement related to the administration of the scheme involving the body corporate, owners, or occupiers.
If an owner seeks reparative action, they may request specific orders from the Ombud, including one that compels the body corporate to undertake necessary repairs and maintenance in both private and common areas, as outlined in Section 39.
In summary, maintenance duties in sectional title schemes are governed by both the STSMA and the common law. Understanding the distinction between common property and private sections, as well as the liabilities associated with maintenance, is crucial for both owners and the body corporate. When disputes arise, the CSOS serves as an essential resource for resolving conflicts and ensuring proper maintenance practices are upheld.
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Author: Razeen Khan, TVDM Consultants
