The Sectional Titles Act 95 of 1986 has been “extensively amended” by Act No 11 of 2010, which was assented to by the president on December 03 2010.
“Most of the amendments are, however, of a technical nature, although there are some that are of importance, particularly to developers and managing agents,” says law firm Garlicke & Bousfield.
Section 5 of the Act, which deals with the definition of the boundaries of a section by reference to floor, walls and ceilings thereof, now provides that any window, door or other structure that divides a section from another section or from common property shall be considered to form part of such floor, wall or ceiling.
Paragraph (d) of section 24 (6) of the Act, which deals with the extension of a section, has been subdivided into sub-paragraphs (d)(i) and (d)(ii).
Sub-paragraph (d)(i), which deals with the extension of a section where there is a deviation of not more than 10% in the participation quota, no longer requires that a certificate stating that the deviation is not more than 10% be issued by the conveyancer.
“This must be done by a land surveyor or architect and must deal specifically with a deviation in the participation quota of the section that is being extended, not any section,” says Simphiwe Maphumulo, a director in the property and conveyancing department at the law firm.
Sub-paragraph (d)(ii) requires that, if deviation in the participation quota is more than 10%, a certificate must still be issued by a conveyancer.
Section 24 has been further amended by the insertion of a new sub-section (6A), which requires that, if deviation is more than 10% of the participation qouta, notice be sent by registered post to each mortgagee in a scheme advising of the details of the proposed extension and its impact on the security of such mortgagee. If a mortgagee is a bank, such notice must be sent to its headquarters.
Section 25 of the Act now allows sectional title schemes to be extended by adding exclusive use areas only.
“Furthermore a developer can now agree with the body corporate, if authorised by unanimous resolution, to the further extension of the period of extension of the scheme,” Maphumulo adds.
A new paragraph (bA) has been inserted in section 37(1) of the Act.
“This entitles a body corporate to require from a developer, who is entitled to extend the scheme in terms of a right reserved, to make such reasonable contribution to the fund as may be necessary to defray the cost of rates and taxes, electricity, water, insurance and maintenance of the part or parts of the common property affected by the reservation of the right.”
Subsection (2) of section 37 now states that liability for the contribution by owners towards levies accrues from the date of the passing of a resolution to that effect by the trustees of the body corporate.
“Upon a change of ownership of a unit, the new owner (purchaser) becomes liable for the pro-rata payment of such contributions from the date of change of ownership. This means there will no longer be a need for a tripartite agreement to protect the body corporate since the new owner is bound by the terms of the Act, as amended, to pay his pro rata contribution towards levies from the date of transfer,” Maphumulo says.
Download Sectional Title Amendment Act here
Article by Simphiwe Maphumulo, Director of Lawfirm Garlicke & Bousfield.
I would like to find out about special levy,we are pay for the last 2 years.Our building is only half painted it looks like we are staying in 2 different complexes.We are paying 350 month for the painting.
Hi Pam,
The trustees can raise special levies for specific reasons. Usually the special levy is for a once off item (i.e. maintenance) and if they run into financial difficulties. In other words, it is for a financial year. They may decide to offer a payment plan, i.e. over 6 months, but in the next financial year they need to adjust the ordinary levies to include the additional expenses.
It looks like the trustees have not acted in good faith and have not been able to uphold their fiduciary responsibilities w.r.t to the paint job.
I suggest you address this at the next annual general meeting.
Hope this helps.
Michael
The tone of our building is being brought down by a tenant who draped old towels and blankets in the window, instead of curtains or blinds. Who should monitor this, please? The Managing Agent or the Caretaker or the Trustees?
Dear Jenny,
Thanks for your email. Trustees must enforce the conduct rules, instruct the managing agent to write a warning letter to the owner and cc the tenant.
Failing to comply they either then proceed with arbitration or penalties against the owner.
Hope this helps.
Michael
In 1991 we bought a one bedroom flat in a sectional title block and rented it out since. Only now that we want to sell the part we are told this flat does not have a parking bay. There are parking bays on the property as well as undercover parking bays in a communal garage. We were under the impression any flat would have its own parking. The deed of purchase does not mention parking. Please advise?
Hi I bought a place last year November it is brand new so the people said that we don’t need to put DSTV dish because all the signal cables are there.
Now I have problems whit signal every 2 weeks and the DSTV people come and fix it works for a week then off again. i pay a levy for all this services i pay R677.73 a month.
Can i put my own DSTV DISH ??
Thank you
Dear Karel,
Thanks for your email. This is a problem. At the point of sale, the agent should have disclosed to you what is for sale and what you are buying, i.e. section 25 (flat) & 5 (store room) plus EUA 4 (garden) & 7 (parking bay). If this was not done, you now have a problem.
You can fix this problem by either renting a parking bay from the body corporate or apply/buy for a parking bay. I suggest you find your agreement of sale and obtain copies of the sectional plans to confirm what belongs to you.
Then you take it forward.
Hope this helps.
Michael
Hi Sunjin,
Thanks for your email. You require trustee consent to erect your own dish. However, considering the circumstances re the working order of the communal facility, I would apply in writing to the trustees for consent stating exactly that reason.
If they disapprove, you may have to consider arbitration according to PMR 71.
Hope this helps.
Michael
My body corporate has not performed any maintenance on the back garage doors since we have moved in in 2005. My door had to be replaced due to water damage as a result of this lack of maintenance. Now they want charge me 50% of the cost of replacing the door. Upon enquiry they simply stated that it is in accordance with the sectional titles act, but I could not find anything yet to this effect. Can I dispute this?
Dear Juan,
Thanks for your email. Generally speaking they are right. Refer to section 5 of the Act re the 50/50% split. It applies to outside windows and doors.
Hope this helps.
Michael
Hi,
I have recently received a charge backdated for the use of a storeroom. I purchased this unit at a Sheriffs auction and became the owner of since June 2009. The previous owner became my tenant and vacated the property at the end of October 2011. This is when I became aware that I have access to the storeroom.have no lease agreement with the Body corporate for the use of the storeroom. Is it legal for the Trustees to pass a resolution and backdate storeroom costs even though I do not have an agreement in place?
Thanks
Hi
Our trustees have put up our levy by 21.3% with no explanation and won’t give one said we can discuss in the next AGM which is three months away to discuss if we want to dispute this ridiculous increase. Normally increases are no higher than 12% every year.
Our electricity and water is a seperate account and we pay the eskom tariffs so not for electricity
Can the trustees do this ?
Dear Olive,
Thanks for your email. The levy can increase has no limit as it depends on your cost structure and the cost increases of your services. Trustees can only increase the levies up to 10%, but at the AGM the levies can be increased further. This however requires owners consent.
Hope this helps.
Michael
Many thanks – they have now informed us that there is a 10% yearly increase and they want the other 11.3% for repairs (not stipulated) but that will only be discussed with us at the next AGM but we must pay it until we have a AGM in May/June
So there has been no owners consent – we have to pay whether we like it or not.
Thanks for your help on this
Olive
Hi
I am wanting to renovate my bathroom and with this move the geyser which is currently in the bathroom to the servitude between my flat and my neighbours.
The servitude is accessible from my flat and currently has a ventilation duct running from the unit below to the roof. The geyser I wish to install is the same width as this vertical ventilation duct.
I was told by the Trustees (initially) that permission had to be requested from the owners (not the trustees) – and I required 50% of the participation quota to agree as the servitude is common property.
Q1 – Is the servitude common property?
Q2 – Can I move the geyser into the servitude?
Thanks
Hi Warren,
Thanks for your email. You can move your geyser outside and with the trustees permission mount it on common property. You may have to rent it or pay an exclusive use levy provided it will be converted in an exclusive use area.
With regards to your 2 questions, I cannot really answer it because I don’t know who owns the servitude and where the servitude is located.
I guess you will have to do some investigation. I don’t think you need a 50% of PQ to agree, you may simply need a majority resolution from owners at an AGM.
Hope this helps.
Michael
Hi.
I am in the process of putting an offer to purchase on a sectional title property. Is it possible to extend the lounge & bedroom by 2 meters. The bedroom is above the lounge. So will not be altering the shape of the townhouse by anyway
Dear Suren,
Thanks for your email. Yes, it is possible, but you require approval by the trustees. Also, if the extension exceeds 10% of the PQ you needs a special resolution and you need to obtain bond holders consent.
You have pay for all plans, re-measuring of the new floor space, and the amendment of the PQ at the deeds office.
You should first run some numbers.
Thanks
Michael
Is an owner allowed to rent out his sectional title property for 2 to 4 days at a time, and using it as holdiday accomodation as the sectional title complex is on the sea?
Please Help! Is there any amended rule or regulation that allows the Trustees/Managing Agent to, at the end of a financial year increase the monthly levy, at say the current inflation rate (adjusted at the AGM to match the budgeted levy), until such time as the AGM is held to approve the next financial year’s budget. This has the advantage that the Body Corp will not be levied at a higher rate if for instance the AGM is only held at say six months after the Body Corp’s financial year ends and the levy for the full year has to be paid over a six month in stead of 12 month period.
Thanks.
Tommy
Hi my question relates to a ‘special levy’ raised by the body corporate to repay an amount owing to City of JHB. Our managing agent did not pay these bills and are ow liquidated. Should the special levy be divided equally amongst all units in the complex or by square meter of each unit?
Thanks
Hi,can you please let me know if bodycorporate can transfer green area to parking less than a meter from my front door. very unpleasant situation.
Hi Please can you assit, our current trsutees have been in power for the last 4 years, and only recently had a general meeting, in which many issues were raised and things brouught to the body corporates attention. To mention a few we have had 1) no signed annual financial statements 2) no budgets 3) no management accounts 4) Chairman was paid R15000 for accounting services 4) No AGM’s have been performed 5) Trustees are blaming previous management agents 6) been paying a special levy for last 3 years
We now have new management agents and I have requested the management accounts for the month of March 2012 on 19/04/2012 and they mentioned they are no yet complete as there is outstanding information. The new management agents are related to the trustees and were appointed without body coporate consent.
We have requested a AGM so are issues can be addressed and possibly appoint or re appoint new/existing trustees. Majority of the owners have signed the petition. However I am of the opinion that they are hiding behind the fact the financials are not ready therefore no AGM can be held.
Please advice how we can go about obtaining more insight into what is happening with the complexes financials and voting for new trsutees, if current trsutees don’t want to call a AGM.
Thank you
HI
I am currently a chairperson in a 8 unit complex and a trustee in a 65 unit complex.
In both complexes we have some people that are not paying levies…. The necessary steps have been taken by the managing agent but to no avail. What can be done to recover these levies?
Hi! I bought a sectional title unit that was built in phase 3 and it is now 4 years ould. TH eother two phases are 6 and 7 years old. Last year the body corporate decided to have the whole complex painted, without the consent of the owners. No meeting was hedl, we has no input to the painting quotes or teh colour schemes. Th epainters just pitched one day and started painting. An extra levy of R375 was deducted from our accounts without our consent. I was not ahppy since my unit di dnot need paint yet but the body corporate decided to paint all 160 units in stead of doig the painting in phases. My proprty was already in the market before this decision was taken. Now that I have found a buyer, I am told that I have to pay teh whole outstanding amount og R20 000 for the paint job, since I have sold my property. I don’t have that kind of amount available. Can I force the new owner to take over my monthly payments of the extra levy or can he refuse? I am not happy with the sitiation I was put in.
1983 Townhouse Complex – 24 houses – The maintenance (vanishing and putty) has been done on a regular basis. Some of the meranti windows and doors on the South side are rotting due to humidity, inside out condensation in winter, softness of the wood and sprinkler system… In the last 5 years, people have started to replace their windows/doors with aluminium ones after approval by the trustees. Surely, the rules cannot be changed retro-actively. Some of the houses are in perfect order because owners have also maintained their inside windows/doors in vanishing them on a regular basis, not using a sprinkler system or even opening their windows/doors for them to dry out. How can this new rule penalise a good owner who has looked after his property by asking to participate in the replacement of other owners’ windows who have rented their house, kept them locked for a period of time or mismanaged them, etc…. There is a big difference between appartment buildings and townhouse complexes with exclusive use area. Thanks Bea
Dear Tanya,
Thanks for your email. The body corporate can convert garden into parking area. However, it would require a special resolution since it is a non-luxurious improvement.
You should have been able to attend this special general meeting and vote against it.
Hope this helps.
Michael
Dear Mashuda,
The special levy is raised according to the participation quota, which is essentially your size of your section divided by the total floor space.
Hope this helps.
Michael
Dear Raj,
You need hand them over to an attorney who has experience in debt collection. You need to ensure your rules are registered, your resolutions are passed, and you have charged your levies and interest correctly.
Then you can proceed. You need to make a decision in terms of credit control procedure, i.e. 30 days hand over. Also, you cannot hand over everyone at once, you need to select the most difficult ones and set an example.
You must understand there is a signal effect to the other owners, i.e. if you don’t pay up you will lose your property.
Hope this helps.
Michael
Dear Beatrice,
Thanks for your email. Well, the Act does make provision for window maintenance. It basically says it is 50/50. The fact that some owners have now at their own expenses replaced their windows, does not change that. They actually could claim for their 50% share.
Unfortunately, not all owners are as responsible as they should be. That is the problem of a community. 80% usually carry 20% of the owners.
That is a fact in sectional title.
I think it needs to be managed and the trustees need to damage control by providing a budget for certain amount of conversions per year and manage the approval process to stay within budget.
Hope this helps.
Michael Bauer