Maintaining and repairing exclusive use areas

Originally published on Paddocksblog.com

By Auren Freitas dos Santos

We deal with a number of disputes relating to exclusive use areas in sectional title schemes. The majority of disputes involve disagreements about who is responsible for maintaining and repairing these areas. The main reason for this is because it is often assumed that an exclusive use area (or EUA) is “owned” by a particular person and therefore that person is assumed to be responsible for maintaining and repairing “their” EUA. 

This assumption is simply incorrect. It must be understood that an owner who enjoys exclusive use rights to an area of common property, whether registered or in terms of the rules, does not acquire “ownership” of that area, but rather an entitlement to use a defined part of the shared common property. In other words the EUA remains a part of the common property, and as such, all owners of sections in the scheme own these areas in undivided shares.

Because EUAs form part of the common property, the body corporate retains the primary responsibility to organise and carry out any maintenance or repair in respect of these areas. Therefore the body corporate cannot demand a person, who enjoys the rights to an EUA, to carry out the required remedial work. As with any other area of common property, the body corporate is obliged to carry out the remedial work. 

It is important to note however, that although there is no obligation on the holder of an exclusive use right to maintain or repair the EUA, there is a financial obligation to reimburse the body corporate for costs of maintenance and repairs undertaken by the body corporate.

The Sectional Titles Schemes Management Act makes it clear that the holder of the exclusive use right is responsible for all of the costs relating to these areas, including the costs of repairs and maintenance, and it prescribes the manner in which these costs must be recovered from the owner concerned.

In Body Corporate of the Solidatus Scheme No. SS23/90 v De Waal, the court found that the intention of the legislature was to place the burden for the upkeep of EUAs where the benefit lay, in other words on the owner of the section to which those exclusive use rights were attached.  The court found that it would be unfair to expect the other occupants in the scheme to contribute to the costs of repairs and maintenance of an EUA, in respect of which they could neither access nor derive any benefit from.  

It is therefore clear that the obligation to maintain EUAs rests with the body corporate, while the cost of maintaining an EUA must be borne by the holder of the exclusive use right. 

Should your community scheme require any advice on costs involved with the maintenance and repair of exclusive use areas in sectional title schemes, please do not hesitate to contact us at info@theadvisory.co.za for a no-obligation quote.