Sectional title schemes in South Africa are surrounded by a plethora of legislation of which many of the trustees are hardly conscious, says Michael Bauer, General Manager of IHFM, the sectional title managers.
“Becoming a trustee of a sectional title scheme is a job that many people take on light-heartedly – sometimes because they have been asked to do so by a good friend who is already a trustee,” says Bauer in his latest weekly online sectional title newsletter at www.ihfm.co.za. “They then discover to their dismay that they are inadequately prepared for this task because sectional title schemes are subject to many rules and regulations.”
“If trustees are going to be responsible about their tasks,” says Bauer, “they must read and get to know all the relevant legislation.”
This, he adds, means making themselves totally familiar with the Sectional Title Act and its Prescribed Management Rules and the scheme’s conduct rules, as well as certain other laws applying to residential property.
“The Sectional Title Act should be the first document read by any new trustee. It sets out the laws that actually govern the composition of the body corporate and the functions, powers and restrictions of the trustees and the body corporate. Trustees need to bear in mind, too, that the sectional title Amendment Bill is due to be promulgated in the last quarter of 2010.
Another body of legislation with which trustees should become familiar, adds Bauer, is the Estate Agency Affairs Act (of 1976). One of its requirements sometimes overlooked is that the managing agent must be registered with the Estate Agency Affairs Board and must have a valid Fidelity Fund Certificate if he collects sectional title levies. Ignoring this particular legal requirement, says Bauer, has cost some sectional title schemes very dearly.
Equally relevant to sectional title schemes, says Bauer, is the National Buildings and Standards Act. Among other things this stipulates that all building alterations must be submitted to and approved by the local council and the trustees before any work begins.
“It might be thought that everybody knows about the need for planning approval,” says Bauer, “but this is not so – and those who do know it often try to ignore it. The situation is worst in the very poor areas where there is often a total disregard for the need to obtain approval, but riding roughshod over this law is also surprisingly common in many upper bracket areas.
“In a recent case brought to my attention, an owner added a full 10m2 extension to his unit without obtaining any approval from council nor the trustees and the ground appropriated was common use land. Any alterations which affect the structure and, therefore, the strength of the building,” says Bauer, “ all have to be particularly carefully monitored.”
Also important, says Bauer, are the town planning scheme regulations which govern – and often restrict – the use to which an occupier can put his unit.
Certain rules prevent residential units being used for business purposes. In a recent case the owner bought two units, knocked out the dividing wall and ran a business from the second unit. Both actions were illegal.
Other legislation that affects sectional title schemes is the Occupational Health and Safety Act 85 of 1993.
“This Act, as its name implies,” says Bauer, “not only ensures that all equipment and installations are safe, it also tries to protect the body corporate staff and its members. The regular maintenance of lifts, fire escapes, fire equipment, air vents and the like are prescribed in the Act as well as such matters as protective clothing, insurance and workmen’s compensation for all people employed on the building. The Act also requires regular health and safety audits. ”
Also on Bauer’s study list is the National Credit Act. As is now widely known, this regulates credit transactions of any kind – including home mortgages and levy finance services. The latter legislation is particularly relevant to sectional title schemes. Also regulated are the levy finance services provided by companies or managing agents if they exceed R250,000.
“The National Credit Act in general,” says Bauer, “has already improved the debt position of thousands of South Africans who had overextended themselves. A recent court case which has done away with debtors’ abilities to avoid prosecution by claiming that they are receiving debt counselling, is especially important.”
“The Debt Collectors’ Act of 1988 is also required reading for any trustee and in many ways complements the National Credit Act. Lastly, the new Consumer Protection Act (now postponed until March 2011) and the latest amendments to the Companies Act are particular relevant to Home Owners’ Associations registered as section 21 companies.
The IHFM campaign to educate trustees more thoroughly and prepare them for their duties, says Bauer, is proving effective, but until all trustees are familiar with all the legislation mentioned, there will always be weaknesses in the service they provide.
For more information, please contact Michael Bauer on 083 255 4442 or michael@ihfm.co.za.
if a sectional title complex is experiencing deteriorating pipes and the insurers are not covering the problem because it is not a burst pipe or fair wear and tear. Are the sellers of these units supposed to make new buyers aware of the problem…And does the body corporate knowing the problem have a duty to disclose same??
Hi Pjkay,
Thanks for your email. This is a very good question. My answer would be no. The reason is that you are selling your flat and as such obtain electrical and plumbing compliance certificates. I don’t you could be expected to make an assumption of the state of the plumbing and electrical installation of the entire building.
The buyer should in any case check last financial statements and minutes of the last 2 AGM and if possible of some trustee meetings to get a picture of current affairs and state of the building.
But this is debatable.
Hope this helps.
Michael
My geyser is installed on the common property, below the staircase. It is piped underground to my unit. There was an increase in my electricity bill from R600/mnth to R2000/mnth. After 3 months the plumbers finally found that the fault was a leaking inlet hot water pipe leading to my unit, this caused the increase in water and spike in electricity, as when repaired the bill read correctly.
The trustees responede that I am responsible for the spike for the 3 months and the plumber call out fees to repar, totalling about R 7500.
Is this for my cost?
This is unfair, as the repair is below ground and the plumber mentioned that it looked like it was damaged from a previous repair.
Dear Pravesh,
Thanks for your email. Your geyser belongs to you provided it only serves one section. The fact that is placed on common property makes it still your responsibility.
It may be unfair, but it appears it was not your fault and not the fault of the body corporate.
Hope this helps.
Michael
I own a flat in a sectional title block. The people downstairs is complaining about a leak … The body corporate is holding us responsible? But is this not structural damage? How do they know it’s not from our shower or bath and not a general pipe in the wall? Should they not claim insurance on this? Are the trustees not responsible for confirming the leak is in my flat? And even i the leak is coming from my bath or shower then is it still not part of the flat and therefore the body corporate’s responsibility?
It’s not my drains as a plumber recommended putting food coloring down the drains before each bath or shower to try to identify if it was a drain and which one and nothing showed up. So it must be the pipes. Also approached the chairperson of the body corporate is insisting that I have to pay and refusing to submit an insurance claim but I think it should be covered by the insurance of the sectional title. I tried to phone the insurance company myself to check but they seem to not exist?
I too am a sectional title owner with my unit above two others. I recently had to replace my entire water mains which is embedded within the concrete slab which forms my floor and the ceiling for the units below.
at the request of the downstairs units I had no less than 3 plumbers inspect what could be seen of my unit’s plumbing (both feed and drainage) – none could find any fault that was visible. It was only after some crack-pot plumber came out at the request of the body corporate that it was decided that my drainage pipes had to be replaced (approx 2m of pipe). No problem except that when my contractor showed me the pipes, they were still very much serviceable and without any leaks whatsoever.
I mentioned this to the body corporate and their plumber and was basically ordered (verbally) to fix the pipes as those (assumedly) had to then be the source of the leak.
Time and time again I requested information about the insurance policies and responsibilities in this regard I was always told that ALL plumbing is the responsibility of the owner, except where the pipes are external to the unit.
But this surely is a structural issue as I even had to demolish one of the 4 walls under which the pipes run – the wall in question here was the one between two bathrooms.
This argument also makes no sense since the lower units electrical conduits are actually above my old plumbing (right below – millimeters in places – the surface of my floor) – does this then make their electrical wiring MY responsibility?
I also had an issue where the body corporate had allowed our downstairs neighbour to close-off a common usage area, previously containing the mains shut-off valve for my water supply. After a pipe in our unit burst we were unable to get to the shut-off valve as the area was now locked and my (then) brand new laminate floors were destroyed (R12000). Again, surely the body corporate should take responsibility for this as it could have been avoided had they not allowed the common usage area to be gated and locked by the downstairs unit as it now is. They’ve since swept the issue under the rug but have added additional shut-off valves to the pipe work in the upper units.
these two little episodes alone have totalled around R60 000 in damages and repairs… and I’m still not finished!
what are my rights and responsibilities here?