Top 7 unanswered questions from our 2nd birthday webinar

16 September | Nicole Nel

On 6 June 2022, we at TVDM Consultants turned 2! In order to celebrate, we decided to host a Q&A webinar, and received many questions from our colleagues and clients in the community schemes industry.

However, due to so many fantastic questions received, we were not able to answer all of them during the webinar.

I decided to make a list of the top 7 questions we weren’t yet able to address. Here they are.

1. What level of resolution is required to allow for the repainting of a boundary wall?

If the repainting of the boundary forms part of the scheme’s 10 year maintenance, reserve and replacement plan, as per Prescribed Management Rule (“PMR”) 22 of Annexure 1 of the Regulations to the Sectional Titles Schemes Management Act 8 of 2011 (“the Act”), then a simple trustees’ resolution is required to authorise the decision and payment from the reserve fund as per PMR 24(5)(a).

However, should the repainting not fall within the scheme’s abovementioned maintenance, reserve and replacement plan, it would constitute an improvement to the common property in terms of PMR 29. The whole “reasonably necessary” vs “not reasonably necessary” discussion with regard to improvements then comes into play.

2. Who bears the financial responsibility for the replacement of an exclusive use area (“EUA”) garden gate?

In terms of section 3(1)(c) and 13(1)(a) of the Act, the body corporate undertakes all the physical maintenance, repair and, if necessary, replacement that the EUA may need, but the costs to undertake the above maintenance, repair or replacement must fully be recovered by the body corporate from the owner to whom that EUA is allocated.

3. Solar panels are becoming very popular for obvious reasons. Roofs are in their nature common property, but owners are now claiming these areas for their exclusive use. Should the roof then be registered as an EUA and if so by means of conduct, management rules or registered EUA?

We always recommend that when creating new EUAs within your scheme, to do so either by way of creating an EUA in terms of the conduct or management rules in terms of sections 10(7) and (8) of the Act. This is because it is the most cost efficient and effective method of going about formalising these areas.

If the body corporate were to opt for the conduct rule route, a special resolution passed by the members is what is necessary in order to amend the current conduct rules to provide for the addition of the EUA rule. In terms of this route, the body corporate will still be responsible for the function of performing the physical maintenance, repair and potential replacement of the solar panels, but will be able to recover all costs relating to the above functions from the owner to whom the EUA has been allocated (see question 2 above).

If the body corporate were to go the management rule route, a unanimous resolution passed by the members is what is necessary for the amendment of the current management rules to include the addition of the EUA rule. The reason why certain bodies corporate opt for the management rule route is because in terms of the management rules, the body corporate can delegate its function of physical maintenance, repair and replacement of the EUA, and all of the additions to the area, to the owner. This would then make the owner to whom the EUA is allocated responsible for the physical maintenance, repair and replacement of the EUA, as well as all the costs associated thereto directly.

In terms of the above, the body corporate still retains the responsibility of making sure that the relevant maintenance, repair and replacement work is done on the EUA, and may go an inspect the relevant EUA at any reasonable time or without notice in the event of an emergency.

4. Can trustees approve extensions on balconies that is changing the exterior of the building?

For purposes of answering this question, I will be interpreting it as, “Can trustees approve the extension of a section onto a balcony that has the result of changing the exterior appearance of the building?”

Should the balcony form part of the section, then the owner would be able to undertake whatever alternation or renovation they wish, provided that such alteration or renovation has first been approved by the trustees.

Should the balcony be registered as an EUA, in terms of section 13(1)(g) of the Act, no owner may use an EUA for any other purpose besides its intended purpose as per the registered sectional plan, unless the prior written consent of every owner within the scheme has been obtained and this consent must explicitly allow for the EUA to be used for this alternate purpose. 

Further to the above, this balcony EUA could also be cancelled in terms of section 5(1)(f) and then the owner to whom that EUA was allocated can now in terms of section 5(1)(h) apply to extend their section onto that area that previously was the EUA balcony. 

 5. If there is a reserved development right which has expired within the scheme and the reserved area has not yet been developed, is this area now classified as common property or exclusive use?

In terms of section 25(6) of the Sectional Titles Act 95 of 1986 (“the STA”), if the reserved development right to extend the scheme has expired, the right to extend the scheme shall now vest in the body corporate, and will need to be registered afresh.

However, in terms of section 5(1)(c) of the Act and section 25(1) of the STA, the members may by unanimous resolution agree to extend the development period and allow for the developer to complete the development.

6. Can an owner plant trees and plants in an EUA without permission from the trustees?

In terms of PMR 30(d), the body corporate must take all reasonable steps to ensure that an owner does not make any alterations to an EUA that is likely to impair the stability of the building or interfere with the use and enjoyment of other sections, the common property or the EUA.

PMR 30(g) further prescribes that the body corporate must ensure that a member does not construct or place any structure or building improvement on an EUA that in practice constitutes a section or an extension of such, unless the members of the body corporate by ordinary resolution resolve that they:

• Give their consent for such a structure or building improvement;

• Prescribe any reasonable conditions in regard to the use or appearance of the structure or building improvement, and

• May withdraw their consent in the event of breach of any of the above conditions.

Therefore, in our opinion, we believe that members’ consent for the planting of trees or plants in an EUA is only necessary if the planting of such would impair the stability of the building or interfere with the use and enjoyment of other sections, the common property or the EUA, or such an improvement would constitute an extension of the section. Under normal circumstances, no permission from anyone would be necessary.

7. Only certain sections have private access to the same garden for enjoyment, whereas other sections do not. Yet, it is classified as common property and all the owners contribute towards it, is this fair?

In our opinion such an area would constitute as a de facto EUA. This means that if it looks/talks/smells like an EUA, it’s probably an EUA.

The fact that only certain sections can physically access this area tells us that it should then only be allocated to the owners of these sections for their exclusive use, and that these owners will then solely be required to contribute to the costs of maintenance, repair and replacement of these areas.

At the moment, all owners within the scheme are contributing towards the cost of maintenance, repair and replacement but are not being given the right of use and enjoyment of this area. This is not fair at all in our opinion, and the owners who are exclusively enjoying this area should be the ones who are paying for its upkeep.

Thank you once again to all of our loyal supporters for powering us throughout the last 2 years, we can’t wait for our next birthday webinar. If you would like to contact us, you can at TVDM Consultants on info@tvdmconsultants.com or 061 536 3138.

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