By Ané de Klerk
Few experiences in life compare to that of buying property – especially one’s first. Whether it be a three bedroom fit for family or a studio the size of a shoe box, the process of purchasing property is exciting but also daunting. When doing the rounds visiting properties for sale there is so much to look out for: “Remember to look for leaks and water damage” your father likely said (no matter how old you are). “Don’t focus solely on your unit, also look at those surrounding it” a friend may have commented. For your own benefit, allow me to add more to your radar. Here are two statements commonly heard when viewing sectional title property for sale and the most appropriate responses to them
“You can use any of these parking bays, they are always available.”
Do not allow yourself to be comfortable with a statement like this one. Parking is by far one of the most contentious issues in community schemes. The fact that certain behavior has been accepted or tolerated for years (or even decades) does not mean it is legal. You do not want to put yourself in a position where you thought you had a right to do or use something only to find out later that no such right existed.
What can you do?
Ask the estate agent and/or owner for copies of the following documentation:
- The scheme’s Conduct and Management Rules, as filed and accepted by CSOS;
- The scheme’s sectional plan, as registered in the local Deeds Registry; and
- The current owner’s title deed, as furnished by said Deeds Registry.
If the right to use the particular bay is not expressly conveyed on one of these documents you cannot accept that you would have a right to park there once you purchase the property.
“The scheme’s finances are in order, we just cannot give you proof because the POPI Act prohibits us from doing so.”
While the legislature may have had only good intentions when creating the Protection of Personal Information Act, in practice I have often found it being used as an excuse to hide or otherwise withhold information from those legally entitled to it. As the body corporate’s debts will become the unit owner’s debt as well, you cannot do a proper due diligence and make an informed decision about buying the property without carefully reviewing the scheme’s financial records.
What can you do?
Your first step is to get the seller (the current registered owner of the unit) to sign a written authorisation granting you authority to request copies of the body corporate’s records and documents. You can then send this letter of authority to the body corporate, together with a written request for copies of:
- The current and previous years’ approved budgets (I recommend requesting at least the last three);
- The most recent and previous financial years’ financial statements (again, request at least three);
- All orders made by CSOS adjudicators, arbitrators, magistrates and/or judges in matters to which the body corporate was a party (these can reveal very important financial information);
- The minutes of previous general and trustee meetings held (I suggest asking for at least three years’ minutes to evaluate important things like the implementation of the scheme’s maintenance, repair and replacement plan over time).
The body corporate is legally obliged to make this documentation available to you within 10 days of receiving your authorised written request and any claim that the POPI Act prevents them from doing so is without basis in law. Once you receive the requested documentation you can critically evaluate the scheme’s financial position and make an informed decision regarding whether or not you should purchase property in that scheme.
Specialist Community Scheme Attorney (BA, LLB), Ané de Klerk, is a Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law. Her focus is legal education, which includes presenting seminars and running online and in-person training programs and courses. Contact her at info@theadvisory.co.za to book a consultation for more tips on buying a flat.
