Building on or moving on up
12 November 2021 | Zerlinda van der Merwe
We were quite fortunate recently to collaborate with Estate Living on a webinar where we chatted about alterations and renovations within community schemes.
It is a good time to discuss this topic, as many of us now work from home where we used to work in an office, or find ourselves spending more time at home, some people have even moved back home, and there of those of us that have introduced new members to our families. Whatever your particular situation, you may be needing more space, and instead of moving to a bigger home, perhaps building on is on the cards.
During the webinar, Estate Living interviewed a paint colour expert, as well as an insurance expert, along with me, who answered the boring old legal questions. What an interesting session it was. Be sure to keep an eye on our website for the recording.
When living in a homeowners' association ("HOA"), before undertaking any work to your erf, you must consult your HOA's constitution or memorandum of incorporation, as well as any supporting governance documentation, such as estate or conduct rules and architectural guidelines. It is unlikely that there will be many, if any, restrictions to what you may do to the inside of your house, but there will likely be specifications to follow in regard to the exterior of your property, such as the paint colour, the colour and type of the roof tiles, the type of chimney or flue, the height of your boundary wall, the footprint that must be maintained, or the type of security you may install, such as electric fencing. These are only a few examples of what your HOA may regulate.
The HOA may have a scrutiny architect or architectural review committee that may be required to consider your application - yes, you will, in all likelihood, be required to make a written application to the trustees or directors, via the offices of the managing agent or estate manager, prior to undertaking any work, which application may require a commencement date, completion date, deposit payable for damages, builders or contractors code of conduct, plan approval process, including the approval of the Local Authority, and recovery of any costs incurred by the HOA in considering and approving your application. Once consent is due to be given, the HOA may require that certain additional conditions be met or that the application be adjusted to better suit the requirements of the HOA, all being reasonable of course. The HOA may, if its governance documentation allows, halt all building work if the above application process has not been complied with, or if your building work deviates from what was approved. Similarly, fines and/or penalties may be imposed, which may be raised on your levy account and legally pursued by the HOA in the collection thereof.
In a sectional title scheme, you must first identify the legal nature of the area upon or within which you wish to undertake the alterations and/or renovations, which area may be part of your section, a separate section, an exclusive use area or part of the common property. In order to do this, you will need to consult the sectional plans of the scheme, as well as the amended management and conduct rules of the body corporate. The sectional plans will indicate whether the area in question is part of the section, a separate section, a registered exclusive use area or part of the common property. The amended rules will confirm whether there are rule based exclusive use areas.
Each area, listed above, will require a different level of consent, and different conditions may be set by your body corporate. The impact of the work may further be different in each case. For example, there may be a proposed change of use of the section (or part thereof) or exclusive use area, or the body corporate may need to ensure that it does not become responsible for any structure or building improvement, forming the median line between the section and common property. You must further consult the amended conduct and management rules of the body corporate, as well as the prescribed rules under the Sectional Titles Schemes Management Act, as well as the Act itself. The conduct rules of the body corporate may have a rule setting out the application procedure and conditions for alterations and/or renovations unique to your body corporate, which rule may require, similar to an HOA, a written application, indemnity form, deposit payable etc. In most cases, the application will not only need to be presented to the trustees for a trustee resolution, but rather to the members for a member resolution, in the form of an ordinary resolution, special resolution, unanimous resolution or the written consent of all owners.
If it sounds more complicated to undertake alterations and/or renovations within a sectional title scheme vs an HOA, you would be quite correct, it is, as it is further regulated by legislation and not only the governing documentation of the scheme in question.
When in doubt, contact us at TVDM Consultants on info@tvdmconsultants.com or 061 536 3138 and we will assist you to navigate the steps needed to be followed, and avoid you having to pay fines, penalties or attend to dispute resolution, either internally or at the Community Schemes Ombud Service.