18 Jan Complex sectional title cases need pragmatic consideration
Occasionally, a body corporate need to consider and evaluate complicated requests from owners based on sectional title rules. A fairly complex case was recently presented to us by an owner for our comment and advice. It involved the following:
- A parking deck with a number of parking bays registered as sections;
- which is located on the top deck of a building and
the owner owns all the parking bays on this deck.
- The driveway area is common property and all owners in the scheme have access and may use it.
- The owner wants to investigate utilising the entire deck and driveway area for a different purpose other than parking (what it was originally intended and registered for)
A few factors need to be considered:
- If the intention of the owner is to build on this area, council approval will be required for the proposed building plans and to ensure the bulk of the site is not exceeded, etc.
- The owner may want to change the use of the section from parking bays to a storage area, for example. In this case, where the intended use of a section will be altered, the written approval of all body corporate members will be required.
- The owner wants to incorporate common property into the new use of this area. Common property cannot be used by any owner for their benefit unless rented or purchased from the body corporate. The new legislation requires approval by all members (by way of special resolution) for the letting of common property. Purchasing common property must be approved by the members by way of a unanimous resolution.
- Except for the situation where the common property is rented from the body corporate, amendments to the sectional title plans will be required which will affect the participation quota of the scheme. This may result in certain owners paying a lower levy due to the extension of the scheme with additional square meterage being added. The costs for the amendments will be for the owner wishing to make the approved changes.
No perfect solution, just pragmatism!
There is no standard solution for complex cases such as the example we used in this blog. A pragmatic and logical approach is required along with a thorough understanding of all the relevant elements. It is essential that the resolutions presented for approval by the members clearly state what the decision is based on. In a case like this, the input and guidance of a specialist sectional title attorney will be invaluable. Call us if you would like to talk through a challenge sectional title or community
schemes case you may be facing at the moment.
Author: Leigh Maingard – MD Stonewood Properties
Stonewood Properties is a professional property management company that specialises in administrating community schemes such as sectional title bodies corporate, homeowners’ associations (HOA) and residential estates in Johannesburg and Cape Town.