By Auren Freitas dos Santos
On 16 July 2021, the High Court (Western Cape Division, Cape Town), delivered a judgment in respect of an appeal in terms of the the Community Schemes Ombud Services Act (the ‘CSOS Act’) against the decision of an adjudicator, whereby the adjudicator dismissed an application by an owner of a sectional title unit for an order that the body corporate should pay to the owner a sum of R 455 757.65, in lieu of damages which were allegedly sustained by the owner pursuant to a fire which occurred in the owner’s sectional title unit, together with a further claim for payment of the sum of R 22 942.50 for lost rental which the owner allegedly suffered as a result of the fire. The adjudicator dismissed the application in limine on the grounds that the relief which was sought fell outside of his statutory jurisdiction.
Although the Court made important comments regarding the types of claims which could competently be brought in terms of the CSOS Act, this article specifically focuses on the findings of the Court in respect of the legal duty imposed on sectional title owners for maintaining, and guarding their sections against the risk of harm. We will focus on the types of claims that may be competently made in terms of the CSOS Act in a separate article.
In their application to the Ombud the owner alleged that the damages which it had sustained in the fire were attributable to a failure by the body corporate to ensure that at all material times the buildings in the scheme were insured for their replacement value, in breach of its statutory duty in terms of section 3(1)(h) and (k) of the Sectional Titles Schemes Management Act (the ‘STSMA’).
The Court noted that in terms of the STSMA the body corporate of a sectional title scheme is responsible for the control, administration and management of the common property of the scheme for the benefit of all owners, which includes the obligation to insure, maintain and repair all common property for the benefit of all owners.
However, the Court also pointed out that there are a number of other provisions in the STSMA which make it abundantly clear that a body corporate’s duty in relation to the sectional title scheme it administers primarily relates to the scheme’s common property and not to the interests of an individual member. In this regard the Court referred to section 13(1)(c) of the STSMA, which provides that each owner must repair and maintain their own section, and that this obligation does not fall on the body corporate.
Consequently, the Court held that an individual section belongs to an individual owner and therefore they would ordinarily be responsible for its upkeep and for any loss which may be suffered in relation thereto.
Based on the above, the Court found that whilst a body corporate has a statutory duty to insure all buildings that belong to the scheme (which will necessarily include those sections which are individually owned) it was not intended that an individual owner would have a right to sue the body corporate for any damages which may have been sustained in respect of the owner’s individual section only.
The Court was of the view, which is correct in our opinion, that the obligation in terms of section 3(1)(h) and (k) of the STSMA to insure the buildings in a sectional title scheme, is one aimed at protecting the common interests of owners in the scheme and not the personal interests of an individual owner.
Therefore, a breach of these provisions is not intended to afford the owner of an individual section a right to sue a body corporate for damages which may have been sustained in respect of that section only, where only the individual interests and rights of the owner have been affected and not the communal interests of owners of sections or units in the scheme.
The Court pointed out that in such circumstances it could hardly be fair or correct to issue an order effectively directing the body corporate to bear the loss which came about as a result of an owner’s own carelessness. To make such an order would be to shift the responsibility for, and the cost of the loss pertaining to an individually owned section, to the other owners of sections in the scheme.
The Court held that this would not only go against a long-standing principle of the common law of ownership, but would encourage delinquency on the part of individual owners in a sectional title scheme, who could look to other members of the scheme for compensation in the event of any loss they suffered in respect of their individually owned sections, due to their own neglect or failures.
The findings of the Court in this matter highlight the importance of an owner’s responsibility for maintaining, and guarding his or her section against the risk of harm, and that an owner would ordinarily have to bear the consequences of any failure on its part to do so and any loss which may be sustained as a result of damage.
Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, is a Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law.
Contact him at www.theadvisory.co.za or email info@theadvisory.co.za if you require any assistance with a dispute within your community scheme.
