By Ané de Klerk
Most people are aware that one of the implications of the “median line” as set out in the Sectional Titles Act is that the cost to repair and maintain windows is generally split 50/50 between the body corporate and the owner of the relevant unit. The writer wishes to emphasise that this is the general rule and that there are exceptions to it, but those are not the topic of this article. Instead, this article focuses on another important aspect of window frame replacement that often causes confusion, namely who needs to approve the replacement. The answer depends entirely on the circumstances and some scenarios are set out below to provide guidance on the topic (but it is always wise to consult with an attorney regarding your scheme’s specific set of circumstances if it is not clear in which category you find yourself):
Category 1: Maintenance
If the scheme’s wooden window frames have reached the end of their life – i.e. they have deteriorated to such an extent that they can no longer be repaired and instead the only reasonable maintenance that can be done on them is to replace them then the replacement of window frames must be listed as a “Major Capital Item” in the scheme’s ten year Maintenance Repair and Replacement Plan, which must be approved by the body corporate’s members by Ordinary Resolution at a general meeting. This means that members holding more than 50% of the participation quota represented at a quorate general meeting must vote in favour of the plan.
In addition, the trustees must give members at least 30 days written notice before the chosen contractor proceeds with the necessary replacement and if, during that 30 day period, any member submits a written request for a general meeting to be held to discuss the anticipated replacement then the contractor may not proceed until the general meeting is called on 30 days notice and a Special Resolution authorising the replacement is passed at that meeting.
This means that at least 75% of the scheme’s members and members holding a combined total of at least 75% of the total participation quota of the scheme present at a quorate general meeting must vote in favour of the replacement if such a meeting has been requested by a member.
Category 2: Improvement
If the scheme’s wooden window frames are still in a relatively good state (they have not deteriorated to the point where replacement has become a necessity) but the body corporate wishes to replace the window frames to improve the scheme, then the replacement must be authorised by Unanimous Resolution. This means that all of the scheme’s members must approve the window frame replacement in writing or all members attending a general meeting at which at least 80% of the scheme’s members are in attendance and 80% of the total participation quota of the scheme is represented, must vote in favour of the replacement.
Category 3: Elective
If the scheme’s wooden window frames are still in a relatively good state (they have not deteriorated to the point where replacement has become a necessity) and the body corporate does not have the desire to replace the window frames, but an individual member wishes to do so then that member must obtain the trustees’ written consent. This means that the majority of the trustees must either vote in favour of the requested replacement at a quorate trustee meeting or, if the resolution is circulated in writing, the majority of the board must indicate their agreement to the request by affixing their signature to a notice sent to each of them by the closing date stipulated within it. If the trustee resolution is passed by majority vote then a representative must provide the member with the trustees’ written consent.
Interested in learning more about Sectional Titles Schemes Management? Our online short course on the subject is the only one in the field earning those who complete it successfully a certificate from the country’s top rated university – The University of Cape Town. Reach out to us at courses@theadvisory.co.za to find out more.
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.
