The common property is owned by owners of a section jointly in undivided shares proportionate to the quotas of their respective sections.
Any insurance of a section will also insure the undivided share in the common property of the owner of the section, even if no express reference is made to such share in the insurance policy document.
Dear Michael, thank you for the latest weekly sectional title newsletter.
QUESTION: sale of common property, is there a specific format of the special resolution? First scenario, sale of old store room to highest bidder, although the owner renting the space, he made application to buy it from the BC.
Second scenario: open space (old washing line area) to convert into parking bay or enclose to use as a garage and to auction this space to the highest bidder.
Please advice.
Thank you
Kind regards
Suzanne
Dear Suzanne,
Thanks for your email and thanks for good feedback. If you alienate common property, you require an animous resolution and all owners need to sign a resolution. This is not possible to achieve.
Why don’t you register an exclusive use area according to 27A or enter into a 9 year lease and capitalise the selling price? It is easier than selling it!
Leasing for 9 years requires only a trustees resolution (as long as it is under 10 years) and the exclusive use area requires a special resolution (quorum of which only 75% of quorum need to in favour of).
Same with the parking bay. There is another problem as you change common property by making an improvement on it. Therefore, PMR 33 applies (which is another can of worms) as well you need to raise funding to make the bay.
Hope this helps.
Michael
Hi Michael,
I would greatly appreciate your view on the scenario below from the owner and the board of trustees perspective:
Trees are situated outside a unit on common property. The gentleman living in the unit next to this common property wants to cut down the trees because it makes his unit cold. A number of owners in the complex do not want the trees to be cut down. Can he just go and cut it down or should he first get trustees approval?
Furthermore, the trustees did inform the gentleman that he cannot remove the trees and on his request a SGM can be held to accomodate voting by the owners group relating to his request to remove the trees.This gentleman is also now threatening with legal action against the trustees because thei initial vote was against the removal of the trees. Surely the owners can’t just take the law in their own hands?
Your comments would be greatly appreciated.
Kindest Regards
Evan F
Hi Evan,
Thanks for your email. No, it is common property and therefore the trustees are responsible for the maintenance of the tree. If he wants cut down the tree, he needs trustee approval to do anything on common property including any fixtures or plants on common property.
He can as owner refer the decision to arbitration or to High Court as he could argue that his propriety rights might be negatively affected and if he wins the arbitration or gets a High Court Order then it would change things.
At this moment, the owners decision is final and you must stand firm.
If he takes the law into his own hands and cuts the tree down you need to stop them by calling the Police.
Hope this helps.
Michael
Trustees can let common property (less than 10 years) But what if trustees let the common property (all the parking) to some owners without prior consulting with all the owners? Aren’t they suppose to operate in the interest of the body corporate? (all the owners)
Hi Pierre,
Yes, you are correct they supposed to act in the interest of the body corporate. But they also have the mandate to manage and maintain common property. The problem is that there are not enough parking bays in most schemes to allocate and then the trustees have to come up with a system. It might not be fair, because there are simply not enough parking bays.
Sometimes you can please all.
Hope this helps.
Michael
I agree that they must manage, but what procedure must they follow where we had a system for 30 years, we parked on a first come bases and now only the privileged few can park on the common property. No prior consultation, no asking for the input of all concerned, not even reffering it to the AGM.
Hi Pierre,
Because they don’t have to consult the owners and there is no formal procedure prescribed in Act or the management rules, unless the owners direct them to at the next Annual General Meeting. According to section 39 (1), the owners can impose directions on the trustees, so in particular how to assign or allocate the bays and what basis.
This is the only way to do it.
Hope this helps.
Michael
Hello,
I’m a first time sectional title owner, and chairperson (whoa is me). We have a problem with a tenant allowing his cat to roam the common property (actually he locks the cat out! and it cries because it has nowhere to go).
Is the common property considered private under the responsibiltiy of the trustees? Can we remove the cat from the premises without legal implications? We would rather take the cat to a nice welfare, rather than call in a local anti-cruelty place, because we want it to stand a better chance at a pro-life organisation. What are our rights as far as the common property goes? We’ve tried to go via the owner, but he’s not much help.
Thanking you in advance
Crystal
Hi Crystal,
Thanks for your email. Unfortunately, you cannot remove the cat even though it is roaming on common property. What I suggest you do write a letter to the actual owner of the unit and inform him about the breach of conduct rules and give him deadline to remove the cat. I would also say in this letter, that if he fails to comply with the rules, you have no choice but to refer the matter to arbitration using prescribed management rule 71. I would also list the potential legal fees (usually between R10,000 to R18,000) payable if he should lose the arbitration. This might be enough pull to encourage the owner to deal with his tenant.
Hope this helps.
Michael
Good day
I am an owner of a sectional title. The vehicle gates are on a motor with detectors that keep the gate open whilst something moves through them.
I entered the complex with my car and trailer. The moment my car was through, the gate closed leaving the trailer outside. I did not notice this and ended up damaging the gate by drining into it with the trailer.
1. The body corporate sent me an account for the replacement of the gate. I paid my levy but not the replacement cost. Am I liable to pay the replacement cost for the gate?
2. The next month the amount for the gate replacement is split up into two costs, not stating replacement of gate anymore, but now looks like 2 months arrear levies. Are they allowed to do this?
Your assistance will be appreciated.
Johan
Hi Micheal,
I would like to know what is the best way to treat worker overtime at a complex.
We have workers staying at the complex property. They are required to be on standby over the weekend. Does this constiture overtime?
What are other complexes doing in regard to overtime in general. Our workers must inform us as soon as they have worked overtime and then they are paid for it except for the weekend when they are on standby.
Your comment and suggestions would be greatly appreciated.
Regards
Jan N
Hi Jan,
Thanks for your email. Well, frankly it does constitute overtime and he is entitled to compensation. There are changes to the basic labour act, and those include compensation of overtime, etc. (remember I am not a labour lawyer).
I would ask why you need to be on stand by over the weekend? It is really necessary?
Hope this helps.
Michael
Hi Johan,
Thanks for your email. Well, yes you are liable. You damaged common property. I wonder why there was no insurance claim against your car insurance lodged?
I am not sure about your second question, but this might be simply an accounting issue showing your balance in arrears in 30 or 60 days.
Hope this helps.
Michael
Good day,
I am looking for sound advise on the following senario:
A year ago our trustees and managing agent went and bought two steel play gyms and errected it righ outside my town house. The trustees did not get permission from home owners to purchase this for the common property. ( I have been complaining ever since and I am not getting any response)
The play gyms are right under peoples residence windows and they have put the play gyms amoungs the allocated parking for residents making it dangerous for our vehicles. The play gyms are not secured properly and it is bringing masses of children to this area where i can not hear myself think in my own residence.
Do I have any rights on this??? Do you know how far a playground should be from a residence or do they have the right to errect it where ever they please on the common property?
Your advise will be appreciated.
Regards
Lee-anne
Dear Lee-Anne,
Thanks for your email. I try to offer some advise. First of all, trustee administer and manage common property. If they were planning to undertake such improvements, they need to have owners consent on the actual permission to install (including the location) the jungle gyms on common property and would have needed budget approval for the purchase of the equipment. This would have given owners like yourself an opportunity to object.
In terms of the workmanship, there may be liability issues for the body corporate if god forbid a child gets hurts, because the equipment was not installed properly, not maintained, and if there are no risk disclaimers it may even expose the body corporate to damages claims.
With regards to the noise, you have a right to peace. I am afraid, you will have endure some noise, but the trustees also must manage the use of the jungle gyms and enforce quiet times, etc.
I suggest you consider arbitration as an option to force the trustees either to move the equipment to another place on common property or enforce the quiet times more strictly.
Unfortunately, you will incur cost in this process. I suggest you consider obtaining legal advice first, before deciding on a course of action and incurring real cost.
Hope this helps.
Michael
We were confronted by the chairman of our board of trustees saying my children are not allowed to play on common property as the owner in front of that area has exclusive use? He further stated that the owners have the right to silence. Is this legal? Considering that these supposed “exclusive use” areas were not registered with the deeds office. Where are my children supposed to play if they cannot play on common property? outside in the street. i think this is totally unreasonable and against my childrens human rights. How do i deal with this blatant infringement on our rights?
Hi Joann,
Thanks for your email. I think those demands are unreasonable for a number of reasons. It is not uncommon to have restrictions in the conduct rules, i.e. quiet times and use of common property during certain hours of the day. However, to restrict this to such a level is unreasonable. You own an undivided share in the common property and can enjoy use. Exclusive use areas belong to you and you can use them as you deem fit.
Generally speaking, you live in a crowded space (the downside of communal living and sharing of living spaces) and one has to compromise. Your children have equally a right to make use of common property as the other owners have a right to enjoy piece and quiet times.
My advise to you is to consult and review your conduct rules. If there are no restrictions, I would advice the trustees in writing to earmark a play area and stipulate quiet times and communicate those to all the owners. Surely, you are not the family with children in the block.
Failing this, I would consider to a) remove the trustees by calling a special general meeting or b) consider arbitration (more costly) as it is their duty to manage, administer and maintain common property for the use and enjoyment of all owners and occupier in the scheme (not just the wishes or preferences of a selected few).
Hope this helps.
Michael
Hi,
I own a sectional title. The Body Corporate sent me a letter to inform me of a termite problem and that I should adress the problem. The prescribed treatment is to drill holes into the foundation and to inject thermicide. Surely this is on the common property and should be for the Body Corporate account? Termites stay in damp soil (i.e. common property) and come out to feed (on my section)? The damp issue was reported. I do not have a problem to fit the bill for pest control inside of my section.
Regards.
Hi Michael
When I bought into a complex, I was told there was a gym and I had to pay a one time fee to access this. Suddenly, the fees now cost R500 per year. Is this allowed without a SGM?
thanks
Jason
Hi Michael
I find myself in a sticky situation. Before I moved into my apartment my old man went and have a security door fitted for my unit. Unfortunately it in amounted across my door and thus over the common property. It is also not the colour the body corporate would like. I am coming under some pressure from them and would like to know what my rights are. The code of conduct was never handed to me nor my dad, and we did not intentionally set up to cause a problem. Can they pressure me into changing it? Should I cave in and make the change or dig in my heels and resist?
Thanks
Rob
Hi
I arrived home and found my trees in my own private garden being chopped off. No one informed me of this action, i’m told that the Trustees simply gave an instruction to chop.
I wrote a letter to them requesting that they replace my trees.
What is my recourse in this matter
Dear Bella,
Thanks for your email. Well, you have to first determine if they are indeed your trees. Where are they located on your property? What type of property is your garden? How big were those trees and were there issues and prior correspondence, i.e. letters to you asking you to trim the trees?
Hope this helps.
Michael
I reside on a duet. There is no formal body corporate and I am one of two owners. Both properties are free standing houses. I am now building onto my home, and needed the consent of the other homeowner. Unfortunately he demands 30 days to make up his mind, and only does so out of maliciousness. He has over the last two years put up illegal structures on his property, including a wendy house, carport and electric fencing without my consent or having any plans drawn up. Is he entitled to 30 days or can I bring a court application compelling him to give me an answer before 30 days, as I can prove that the delay is malicious? I had informed him in July 2011, 4 months ago of the intention to add on to my property, unfortunately it was not done in writing. He knows that I need to complete the construction by 15 December 2011, and the work takes 6 weeks to complete, so he has been promising to give me an answer, but when the answer is due as he promised, he moves the goal post again. I am desperate, please help. Also note that there is no common property on the duet.
Hi Michael
Thank you for the great source of information. We own a unit in Saxonwold Manor. I have a situation resembling Suzanne’s letter.
We own 3 vehicles, 1 lives in the allocated parking space and the other 2 are shuffled between different common parking bays. One of the vehicles is my work vehicle which has equipment left inside. Usually twice a week I park the work vehicle near a common power point and run an extension lead to the vehicle, to change batteries and my digital UPS. I have measured this power consumption under full load which is .8 amps.
An ordinary house iron pulls approx 4amps.
Please note that my extension cable is always safe and never an obstruction. The hours I use this common power point are from 9pm to 5am, at a push.
I have had a letter sent to me by the body corporate saying that a trustee member has complained about the use of this common power point. From browsing through this q&a area I realized that I actually have a right to use this power point.
How do I handle this situation from here on? I am meeting with the trustees today and I believe that I need to enforce the fact that common property includes use of these power points. I don’t believe they are going to stop the domestic workers from using these points for their ironing, and in turn should and can stop me.
Thanks in advance
HI,
We live in a Sectional title complex. One owner is upset as his neighbour has a large thorny tree, with branches growing over the wall and it is dropping thorns. The kids are being hurt despite the parents scanning for the thorns and picking up what they find. It is a nice tree, lots of weaver nests, and we even had an owl staying for a while, so would like to keep the tree in the complex, but the kids must be safe! Can the owner demand that the offending branches be cut back regularly? Would the expense be for the unit owner or the Body Corporate ?
Please advise ,
Thanks,
Irene
Hi Irene,
Thanks for your email. Yes, the owner can request that the owner with the tree cuts back the branches.
IT would be the expensive of the unit owner provided the garden is exclusive use or a section. If it is common property then the body corporate will have to pay for the cut. Please check your sectional plans to determine who owns the area in what form of ownership.
Don’t assume because the garden is fenced or walled that is exclusive use.
Hope this helps.
Michael
I need some advice. The paving of the common property at our complex appears to be lower than the dampcourse level of the buildings and the complex has no proper stormwater drainage system in place. As a result the water enters our unit during heavy rains, both from grounwater level and from surface water. The Body Corporate is refusing to attend to remedial action citing lack of money and is advising me that they are not required in law to attend to same and that I should fix the problem myself or sue the developer. I did not buy the unit directly from the developer.
Can I force them to either repair the common property or attend to remedial works to prevent the water from entering our unit?