On the 19th January 2021, Auren Freitas dos Santos – founder of The Advisory – featured as the guest speaker on the Private Property podcast. The podcast gives a clear understanding of the exclusive use of areas in sectional title schemes.
Summary of Transcript [from 4:32]:
The discussion focuses on exclusive use areas in sectional title schemes, addressing common misunderstandings, issues, and practical resolutions.
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What is an Exclusive Use Area?
- An exclusive use area is a portion of common property in a community scheme allocated for the sole use of a specific owner.
- Common examples include parking bays, gardens, or storage areas. These areas remain part of the common property but are for the exclusive use of one owner.
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Common Issues with Exclusive Use Areas:
- Disputes over parking, particularly when buyers mistakenly believe they own a specific bay.
- Confusion about gardens or backyards thought to be private but legally classified as common property.
- Misrepresentation by estate agents or lack of clarity in body corporate rules can exacerbate disputes.
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Steps to Address and Prevent Issues:
- Prevention: Before purchasing, review the body corporate’s management and conduct rules. Verify if exclusive use rights are registered with the deeds office or defined in the body corporate rules.
- Remediation:
- Amend sectional plans to register exclusive use areas, requiring a unanimous resolution—a challenging process.
- Update management or conduct rules to establish exclusive use areas through special or unanimous resolutions, depending on the rule type.
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Trustee Composition in Community Schemes:
- Non-owners can serve as trustees if nominated and elected at an AGM.
- Concerns about potential conflicts arise when non-owners dominate trustee positions, possibly leading to biased decision-making.
- Community schemes can amend their management rules to ensure a balance between owner and non-owner trustees.
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General Challenges in Community Schemes:
- Frequent trustee turnover can hinder long-term planning and consistency.
- Trustees who live in the scheme are often more engaged and effective in resolving issues, as they experience the day-to-day challenges firsthand.
The discussion highlights the importance of understanding rules and seeking clarity before purchasing or making decisions in a sectional title community to avoid future conflicts. The discussion then turns to discuss some specific situations that can come up in sectional titles schemes, specifically regarding plumbing.
1. Changing Plumbing from Wall-Mounted to Countertop Installation
When renovating within a sectional title property:
- General Guidelines: Changes are typically permitted if they do not impact the building’s external appearance or the shared/common areas.
- Considerations: Work must comply with reasonable hours to avoid causing disturbance.
- Responsibility: Since these changes are internal and localized, they fall under the owner’s responsibility, but prior approval from the body corporate may be required for significant alterations.
2. Dealing with Incorrect Plumbing in Shared Units
This situation often arises due to poor construction practices, such as pipes that service multiple units running through individual properties.
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Implied Servitude:
- Sectional title laws (e.g., Section 27 of the Sectional Titles Act) create an implied servitude over parts of a property to ensure water supply or other essential services.
- If a pipe servicing multiple units is faulty, the body corporate has the right to access affected sections for repairs.
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Process for Repairs:
- Notify the body corporate, who will give the affected unit owner reasonable notice to allow access.
- Repairs are conducted at the body corporate’s expense, as the pipe is considered common property due to its shared purpose.
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Key Insight: Even if the pipe runs through an individual’s property, its shared function makes it the body corporate’s responsibility.
3. When Access for Repairs is Denied
If an owner refuses access for necessary repairs:
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Legal Rights via Implied Servitude:
- The body corporate can explain the concept of implied servitude to the owner, clarifying their legal obligation to provide access.
- Most disputes are resolved once owners understand that repair costs do not fall on them.
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Enforcement:
- If refusal persists, the body corporate can seek legal action or approach the Community Schemes Ombud Service (CSOS) for a court order to enforce access.
- Repairs should be scheduled at reasonable hours to minimize disruption.
4. Exclusive Use Areas (EUAs)
Exclusive Use Areas are parts of the property (like parking bays, gardens, or balconies) assigned to specific unit owners for exclusive use but remain common property.
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Types of EUAs:
- Registered EUAs: Recorded in the title deed.
- Rule-Based EUAs: Allocated via body corporate rules.
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Common Mistakes:
- Uncertainty About Ownership: Owners often assume an area is theirs without verifying if it’s an EUA. This can lead to disputes.
- Failure to Collect Levies: The body corporate must recover maintenance costs for EUAs from the respective owners. These levies should be based on actual maintenance costs and not arbitrary amounts.
- Misunderstanding Maintenance Responsibility:
- The body corporate must maintain EUAs (e.g., repairing a garage roof), but the costs are recoverable from the owners who have exclusive rights.
5. Tips for Living in Community Schemes
- Understand the Legal Framework: Familiarize yourself with the rules governing your community scheme, especially regarding exclusive use areas and maintenance responsibilities.
- Communal Living Requires Compromise: Living in a shared environment means balancing personal rights with communal obligations.
- Seek Clarity Before Purchase: Verify details about EUAs and maintenance obligations before buying into a community scheme.
Key Legal Insights
- Sectional Title Act: and Sectional Titles Schemes Management Act: offer clear legal frameworks for resolving disputes and maintaining shared spaces. Implied servitudes ensure equitable access to essential services like water.
- Community Living Dynamics: The success of a scheme depends on mutual respect, clear communication, and adherence to legal responsibilities.
