By Ané de Klerk
Winter marks the rainy season in Cape Town and so far the Mother City has certainly lived up to the expectation. On the upside, fields and gardens are green and the hallmark downpours give our dam levels the significant boost it needs; but unfortunately stormy weather also has negative consequences, such as water ingress and damage to homes. In sectional titles schemes, this brings about annual battles around who is responsible to maintain infrastructure, fix failing parts of the property and attend to resultant damage. So let’s take a closer look.
What the body corporate must fix:
Any damage resulting from failing common property must be fixed by the body corporate. This means failing waterproofing on common property walls, cracked roof tiles and any other structural issue with the common property that results in water seeping into sectional title homes, offices or factories must be attended to by the body corporate. Most weather-related damage will therefore be the body corporate’s responsibility to attend to as this damage usually occurs from the outside in.
It is important to remember that exclusive use areas still form part of the common property and that the body corporate is therefore also responsible for fixing these areas and any damage resulting from a failure by these areas to keep water out. For example, if a balcony is subject to exclusive use rights in favor of a section owner and water leaks into the section situated beneath that balcony as a result of failing waterproofing, it is still the body corporate that must fix the waterproofing issue and the resultant damage. The body corporate must use the exclusive use contributions levied to pay for the maintenance of these areas. It is a common misconception that the maintenance responsibilities of these areas shift to the holder of the exclusive use right when the right is created, when in fact that is only the case when the body corporate’s rules clearly stipulate that such an exception to the general rule has been adopted.
It must also be noted that not all balconies are common property subjected to exclusive use rights – they may well be unregulated common property or even part of sections. Review your scheme’s registered sectional plans if you are unsure about the legal nature of the balconies in your scheme.
What owners must fix:
Any damage resulting from within a sectional title home, office or factory must be fixed by the owner. Also remember that an outside area such as a balcony or a stoep could form part of a section, in which case the owner will be responsible for the maintenance of, and resultant damage caused by a lack of maintenance of, the area in question.
What if they don’t?
The Prescribed Management Rules dictate that, if a member fails to maintain their section in good repair and the failure materially prejudices the interests of the body corporate or other members, the body corporate must take steps to remedy the failure and recover the costs from the responsible owner.
Accordingly, if damage is occurring as a result of failing waterproofing of a section or any part thereof (such as a balcony or stoep that forms part of a section), the trustees (on behalf of the body corporate) must take swift action against the relevant owner(s) to ensure they carry out the necessary repairs. Should they fail to do so, the trustees must undertake the repairs and recover the costs from the responsible owner(s).
The Sectional Titles Schemes Management Act ultimately places the responsibility on the Trustees to ensure that these obligations are met and imposes a fiduciary duty on Trustees to act in the best interests of the body corporate. Any failure by them to repair relevant defects, failing waterproofing and/or resultant damage could constitute a breach of both their statutory and fiduciary duties and may lead to personal liability. It is therefore vital that action be taken swiftly and in accordance with the relevant legislation.
Experiencing issues with water damage in your scheme? Our attorneys are able to assist. Reach out to us at info@theadvisory.co.za for an obligation-free quotation for help from our legal experts.
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.
