I bought a flat in a security complex in Arcadia, Pretoria 20 years ago. The outside is in quite a good condition. Our Rules of Conduct stipulates that no one is allowed to do any major renovations without the permission of the Board of Trustees. However, during the past 10--15 of years some owners simply add partitions in their flats (usually the large sitting room and some of the bedrooms) thereby creating additional rooms that are then rented out. The then BOT simply allowed these owners to go ahead. This resulted in overcrowding (in one instance there was 21 people staying in a 2,5 bedroom flat with added partitions) This partitions do not have outside facing windows, is not necessarily kept in a good / clean condition. These flats have 1 (some2) bathrooms and 2 toilets. Imagine the problems the current BOT experience with the noise, plumbing as well as the water consumption. Apparently the Sectional Title Law 95 of 1986 stipulates that adding such partitions is not allowed. Where exactly is this stipulated? I understand there is also municipal by-laws (for City of Tshwane specifically) safety and also health laws that do not allow this situation. How does this situation fit into Tshwane's "upgrade of the City" and can the current BOT go ahead asking the owners to remove the partitions and adhere to the specified number of occupants allowed for the flats. What will legal / correct procedure be.? A Hattingh
Read the Sectional Titles Act. Surf the City of Tshwane's wedsite looking for "by-laws" (there is a lot!)as well as other websites.
Welcome, thank you for the opportunity to address your question.
I need a bit more information in order to provide you with a focused answer:
Owners have not even submitted written request for approval of any renovations as stipulated in our Rules of Conduct. The BOT therefor did not give permission but also did nothing to prevent building of partitions.Temporary nature.Rules stipulate maximum number of occupants allowed per unit.This do not prevent some owners to allow more occupants, even if they have not installed partitions. We also believe that some tenants simply sublet without owners knowing. Yes Body Corporate is still a functional solvent entity.
There are a number of remedies available.
Consider contacting your local authority and report the possible transgression of the National Building Regulations and Standards Act in that the occupants of units have unlawfully altered the units outside of design specifications in terms of section 10 of act resulting in the occupation of inhabitable living spaces. Request that the local authority building control officers inspect such units in terms of section 15 of the act.
The trustees have the following statutory duties:
"Sectional Titles Regulations Annexure 8 Management Rules
Duties of trustees
Statutory and general duties
28. (1) Without detracting from the scope of the additional duties specified in rules 29 to 45, inclusive, and subject to the provisions of such rules, the trustees shall perform the functions entrusted to them by sections 37 and 39 of the Act.
(2) The trustees shall do all things reasonably necessary for the control, management and administration of the common property in terms of the powers conferred upon the body corporate by section 38 of the Act.
(3) The trustees shall do all things reasonably necessary for the enforcement of the rules in force."
The BOT have clearly derelicted their duty to enforce the rules and reasonably administer the body corporate's property and affairs. To knowingly condone unlawful alterations and occupation of units by more people than permitted in the rules or by the maximum permissible for the unit specifications in terms of the National Building Standards, could also be seen as a breach of their fiduciary duties, rendering them personally liable for any resulting damages or costs suffered by the body corporate.
Sectional Titles Regulations Annexure 9 Conduct Rules provide as follows:
"4. (1) An owner or occupier of a section shall not mark, paint, drive nails or screws or the like into, or otherwise damage, or alter, any part of the common property without first obtaining the written consent of the trustees."
The Sectional Title Management Act provides for two additional remedies.
In terms of section 9:
" 9. Proceedings on behalf of bodies corporate
1) An owner may initiate proceedings on behalf of the body corporate in the manner prescribed in this section-
a) when such owner is of the opinion that he or she and the body corporate have suffered damages or loss or have been deprived of any benefit in respect of a matter mentioned in section 2(7), and the body corporate has not instituted proceedings for the recovery of such damages, loss or benefit; or
b) when the body corporate does not take steps against an owner who does not comply with the rules.
2) a) Any such owner must serve a written notice on the body corporate calling on the body corporate to institute such proceedings within one month from the date of service of the notice, and stating that if the body corporate fails to do so, an application to the Court under paragraph (b) will be made.
b) If the body corporate fails to institute the proceedings within the period referred to in paragraph (a), the owner may make application to the Court for an order appointing a curator ad litem for the body corporate for the purpose of instituting and conducting proceedings on behalf of the body corporate."
This means that a unit owner my apply to court for the appointment of a litigation curator (usually an attorney or advocate) to litigate on behalf on the body corporate where the trustees have failed to act.
Furthermore should there be evidence of serious financial or administrative mismanagement of the body corporate's affairs, an application in terms of section 16 of the Sectional Title Management Act may be made in the magistrates court by either the local authority (building control officers) or an owner whereby the body corporate is placed under professional administration in order to rectify it's affairs.
Should you have enough support, you may also consider being voted onto the BOT along with similar supporters. Many owners do not vote, but you can obtain their proxy.
I trust that I have provided you with suffiecient legal information in order to better understand your current position.
B.Com LLB Registered Corporate lawywer
Thank you for the answer so for......I am definitely going to press the accept button. I just want too go through your response for any further questions from my side. Regards
Happy to clear up any questions you may have regarding this matter.
Hi,I consulted the Nat.Building Regulations and Standards Act No. 103 of 1977.? With specific reference to definitions of...building and erection in relation to a building and Section 10 and 15 as you suggested. Is their anything else in this Act I can refer to?I assume (hopefully ?) that the BOT will not be held responsible for any claims regarding a loss of income when the partitions are taken down and some people have to move out of the flats, as well as any damages to the walls/carpets/etc that may occur when they remove the partitions.RegardsAnsie
The sectional title plans and documentation should list the maximum number of inhabitants per each unit, failing that the building inspector of the local authority will have all original approval documentation on file. There are also national building standards available from the SABS on the specifications of habitable rooms, your local authority will be able to quote the standard for your area.
The BOT at that time may very well be held liable for any damages or losses sustained by those compliant units which were impacted by the BOT not fulfilling their duty to safeguard the interests of the body corporate's property; for example a loss of rental income or cancellation of a lease do to an overpopulated next door unit or loss of amenities or the increased costs in services due to the disproportionately higher density of inhabitants than all owner's had agreed to in purchasing their unit.
The current BOT have duty enforce the rules of the body corporate and may even be compelled to do so as detailed above. If the previous BOT had given express written permission for the partitions to be built then there could be a claim for damages against the body corporate, which would in turn have a claim against the BOT individuals who issued such unlawful written permission. The trustees should carry personal indemnity insurance in any event.
The probability of owners of unlawfully modified units succeeding in any final interdict or claim for damages in restoring their units, is very low. The body corporate not only has strong merits, but also a duty to act least they be held accountable for not pursuing the matter.
In similar circumstances, a suggested process would look something like this:
Should the BOT require the building inspector to review the alterations, the local authority may issue the body corporate with an order which could potentially prejudice the interests of the compliant owners as well.
The individual owners will have issues lawfully evicting the excess tenants whilst at the same time being charged compliance levies by the body corporate; which is the risk they took in effecting unlawful modifications and overpopulating their units.
I trust that the legal information provided is helpful in understanding your position.
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