Tips When Buying a Home in an Estate: Understanding Estate Laws, Levies and Compliance

One of the most common questions in sectional title is also one of the most difficult to answer with a simple “yes” or “no”:

Who is responsible for paying when something needs to be repaired or replaced?

A leaking geyser. A cracked window. A burst pipe. Damp on an internal wall. A damaged balcony. A leaking roof. A blocked drain.

The answer is not always obvious.

In a sectional title scheme, understanding who is responsible for the maintenance, repair and replacement of a particular item requires looking at whether the item forms part of the owner’s section or the common property (as well as whether any exclusive-use rights or scheme rules affect the position).

This is why disputes about maintenance can become complicated. The person who discovers the problem is not necessarily the person who is responsible for fixing it or paying for it.

The starting point: section or common property?

The first question should always be:

Is the item part of the section or part of the common property?

The Sectional Titles Act provides the framework for dividing a development into individually owned sections together with jointly owned common property. The Sectional Titles Schemes Management Act 8 of 2011 (STSMA) then governs the management and financial administration of the scheme.

Broadly speaking:

• Owners are generally responsible for maintaining their sections.
• The body corporate is responsible for maintaining the common property.

The distinction can become more complicated where an item sits on or forms part of a boundary between a section and common property (or where an area is subject to exclusive-use rights).

This is why simply saying “it’s outside my unit, so the body corporate must pay” is not always correct.

What is common property?

Common property generally includes the parts of the scheme that do not form part of an individual section.

Depending on the scheme, this may include areas such as:

• roofs
• external walls
• foundations
• staircases
• passages
• driveways
• communal gardens
• communal facilities
• certain plumbing and electrical infrastructure
• structural elements of the building

The exact position should always be checked against the registered sectional plan, applicable rules and the circumstances of the particular repair.

The STSMA places an obligation on the body corporate to maintain the common property and keep it in a state of good and serviceable repair.

What is the owner normally responsible for?

An owner is generally responsible for maintaining and repairing their own section.

For example, this may include items that form part of the interior of the section and are not common property.

However, there are important exceptions and grey areas.

A good example is a window or door.

It is tempting to assume that because a window is physically inside or immediately adjacent to a section, the owner must automatically pay for it. However, the legal position depends on how the boundaries of the section are defined and how the particular element is treated under the sectional plan and applicable law.

This is why a proper assessment is often required before a repair responsibility is allocated.

A practical guide to common maintenance questions

The table below provides a useful, very basic, starting point. It is not a substitute for reviewing the sectional plan, rules and circumstances of the specific scheme.

Item / problem	Typical starting point	Important consideration
Roof	Body corporate	Generally common property and part of the body’s maintenance obligations
External walls	Body corporate	Structural/common-property responsibility generally rests with the body corporate
Foundations	Body corporate	Normally common property
Communal driveway	Body corporate	Generally common property
Communal garden	Body corporate	Subject to the scheme’s rules and any exclusive-use arrangements
Internal finishes	Owner	Generally part of the owner’s section
Internal plumbing	Owner or body corporate	Depends on where the pipe is located and whether it serves the section or common property
Main/common water pipe	Body corporate	Usually common-property infrastructure
Geyser	Depends	The position should be established from the sectional plan, rules and applicable legislation
Window	Depends	The boundary and legal classification must be considered
Garage door	Depends	The sectional plan and relevant boundaries are important
Balcony	Depends	A balcony may involve both section and common-property considerations
Exclusive-use garden	Depends	Exclusive use does not necessarily turn common property into privately owned property
Exclusive-use parking	Depends	Responsibility for costs can be affected by the nature of the exclusive-use right and the applicable rules
Common-property leak	Body corporate	The body corporate generally has responsibility for common property
Damage caused by a common-property defect	Depends	Responsibility for the underlying defect and resultant damage should be considered separately

That last point is particularly important.

The difference between the cause of the problem and the resulting damage

Consider this example:

A common-property pipe develops a leak and water enters an owner’s unit.

There are potentially two separate questions:

1. Who is responsible for repairing the pipe?
2. Who is responsible for repairing the damage caused by the water?

The answer to the first question does not automatically determine the answer to the second.

Insurance may also become relevant.

For this reason, owners and trustees should avoid immediately deciding who is liable based purely on where the water appeared.

Find the source first. Determine the responsibility second.

What about geysers?

Geysers are one of the most common sources of confusion in sectional title schemes.

An owner may reasonably assume that the geyser inside their unit is automatically their responsibility. A body corporate may have a different view depending on the scheme’s documentation and the location and classification of the installation.

The correct approach is not to rely on assumptions.

The scheme should consider:

• the sectional plan
• the position of the geyser
• the pipework serving the geyser
• the scheme’s rules
• applicable legislation
• the insurance policy
• whether the issue relates to maintenance, replacement or resultant damage

A good managing agent should be able to help trustees identify the relevant documents and establish the appropriate process.

What about exclusive-use areas?

This is another area where owners frequently misunderstand the position.

An exclusive-use area is not necessarily privately owned property.

An owner may have the exclusive right to use a particular portion of common property (for example, a parking bay or garden), while the underlying property remains common property.

The STSMA specifically provides for additional contributions relating to certain exclusive-use areas to cover costs such as rates, insurance and maintenance (subject to the applicable rules).

This means that the question is not simply:

“Who uses the area?”

Instead, trustees should establish:

What is the legal status of the area and what does the legislation and scheme documentation say about responsibility for its maintenance and costs?

Who should appoint the contractor?

Another common problem occurs when an owner experiences an urgent maintenance issue and decides to appoint a contractor themselves.

That can create complications where the work relates to common property.

If an owner believes that the body corporate should be responsible for a repair, it is generally better to report the problem to the managing agent or trustees first, particularly where the work could involve significant expenditure.

This allows the body corporate to:

• investigate the problem
• establish responsibility
• obtain appropriate quotations
• consider insurance
• approve the expenditure where required
• appoint an appropriate contractor
• keep proper records

There may obviously be situations involving genuine emergencies where immediate action is necessary to prevent further damage. Even then, the body corporate should be notified as soon as possible.

What happens when an owner fails to maintain their section?

The responsibility does not simply disappear because an owner does not attend to a problem.

The sectional title legislation and regulations provide mechanisms for dealing with failures to maintain sections and certain exclusive-use areas.

The regulations provide that where an owner fails to repair or maintain their section (or adequately maintain certain exclusive-use areas) and the failure continues after written notice, the body corporate may in appropriate circumstances remedy the failure and recover the reasonable cost from the owner.

This is an important protection for the wider community.

One owner’s failure to maintain their property can sometimes cause damage, inconvenience or expense for other owners.

What about insurance?

Maintenance responsibility and insurance responsibility are not necessarily the same thing.

A body corporate is required to insure the building in accordance with the STSMA and applicable regulations.

However, the existence of insurance does not mean every repair will automatically be covered.

When damage occurs, trustees should consider:

• What caused the damage?
• Is the affected property common property or part of a section?
• Is the item insured?
• What does the policy cover?
• Is there an excess?
• Was there a maintenance failure?
• Is the repair preventative maintenance rather than insured damage?
• Is there resultant damage that should be treated separately?

Insurance should therefore be considered alongside the maintenance responsibility rather than instead of it.

The maintenance plan matters

A financially healthy sectional title scheme should not be relying entirely on emergency decisions when major maintenance becomes necessary.

The STSMA requires a body corporate to establish and maintain a reserve fund that is reasonably sufficient for the future maintenance and repair of common property.

The regulations also provide for a maintenance, repair and replacement plan and reserve-fund budgeting.

This is where good sectional title management makes a significant difference.

A roof that needs replacing should ideally not come as a complete surprise.

A major waterproofing project should ideally be anticipated.

A body corporate should be able to look ahead and understand which significant components will require attention (and how those projects are likely to be funded).

So, who pays?

The short answer is:

It depends.

And that is precisely why maintenance disputes can become complicated.

Before deciding who must pay, a body corporate or owner should consider:

1. Is the item part of the section or common property?
2. What does the registered sectional plan show?
3. Are there exclusive-use rights involved?
4. What do the scheme’s management and conduct rules say?
5. Is the issue maintenance, repair or replacement?
6. What caused the damage?
7. Is there an insurance claim?
8. Is there resultant damage?
9. Is there a maintenance or reserve-fund provision for the work?
10. Has the correct authority been obtained before appointing a contractor?

The golden rule

Don’t start with “Who is going to pay?”

Start with:

“What exactly is the problem, and who is legally responsible for that part of the property?”

Once that has been established, the question of funding becomes much easier to answer.

Disclaimer

This article is for general informational purposes only and should not be considered legal advice. Community Schemes should consult professional legal advisors to ensure compliance with applicable laws and regulations.

Solver Property Services has managed community schemes since 2005 and combines property administration, financial expertise, maintenance oversight and compliance support in one hands-on service. Contact Solver to discuss your scheme’s needs and request a tailored property management proposal.