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Unfair to expect you to foot the bill for that? There may be a way around it.

By Ané de Klerk

Part and parcel of owning a property in a sectional title scheme is having to adopt a mindset of “what is best for the community” rather than simply “what is best for me”. We see this in the way we adapt our behavior (for example by complying with the scheme’s Conduct Rules and refraining from nuisance causing actions) and we also see this in the way we make contributions to the scheme’s funds even when such contributions fund things we may not have any particular interest in or use for. For example, we may not have a love for flora, but still contribute to the upkeep of the scheme’s gardens and we may much prefer getting lost in a book to taking a run on the treadmill, but still contribute to the maintenance cost for our scheme’s gym.

While a certain amount of personal sacrifice for the greater good of the scheme is expected, especially when the contributions are applied in such a way that your property’s worth is ultimately benefited by the spending, there are some instances where it may quite simply be unfair for you to contribute toward a cost that you derive absolutely no direct or indirect benefit from. Let’s take a closer look at an example and what you could do in such circumstances.

The example

Let’s say that a sectional title scheme was built in two phases. In each phase a single building, 9 storeys high, was erected. The first of these buildings (let’s call the building “Building A”) has a lovely rooftop area with communal braais, a swimming pool and gym; but the second building (“Building B”), situated 200 meters away at the other side of the scheme’s parking area, does not have these facilities as the developer realised he could increase his profits by building a lavish penthouse in its place.

Now, let’s imagine that the buildings have been fitted with a biometric authentication system (ie that you have to use your thumbprint to gain access to your building) and that the system has been set up in such a way that the residents of sections situated in Building A cannot get access to Building B and vice versa for security purposes. Would it be fair and reasonable to expect the owners of sections situated in Building B to contribute to the maintenance of the braais, pool and gym that they do not have access to? Of course not. Does legislation provide a solution to this problem? Let’s see.

The legislation

According to section 11(2) of the Sectional Titles Schemes Management Act:

“…the members of the body corporate may by special resolution, make rules under section 10 by which a different value is attached to the vote of the owner of any section, or the liability of the owner of any section to make contributions for the purposes of section 3(1)(a) or 14(1) is modified.”

What does this mean?

Legislation allows for the body corporate to make rules that change the effect of someone’s participation quota as it pertains to their responsibility to make contributions to the administrative fund. (It also enables the body corporate to make such rules that alter the owners’ vote values, which is not related to what we are discussing in this article, but something to take note of nonetheless).

This means that the body corporate described above can make a rule that makes only the owners of sections situated in Building A responsible for the maintenance costs of the braais, pool and gym in that building while the owners of sections situated in Building B are exempted from contributing to said costs. It is important to note that the owners’ participation quotas are not changed. It is the effect thereof that changes.

Important issues not to be overlooked

  1. The body corporate has to get the written consent of any owner who will be negatively affected by such rule prior to making it; and
  2. At least 30% of the sections in the scheme must be owned by persons who are not the developer before such rule may be tabled for approval.

Do you believe that your scheme could benefit from the adoption of such a rule, but you are unsure of how to draft and present it properly? Send an email describing your situation to info@theadvisory.co.za and we will be in touch with a quotation for your consideration.

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