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Adding a gym in sectional title schemes

14 Jan 2015

Over the last twenty years there has been an increased focus on health and fitness. One of the most popular New Year’s resolutions made by people every year involves weight loss, health and fitness. Recently I read that a New Year’s resolution is “merely a to-do list for the first week of January.” Reading that made me think: How can people achieve their weight and fitness goals? 

A fitness centre could be seen as being of equal benefit to all the owners and it could be suggested that all the owners should make equal contributions to the costs involved.

After contemplating this question I came to the conclusion that if the circumstances that create room for excuses were removed then the risk of failure would be drastically reduced. People would be more inclined to exercise if their scheme were to have fitness facilities. 

This blog post will therefore deal with the establishment and use, as well as the maintenance and management of gyms in sectional title schemes. 

If a scheme has common property that could be used for establishing a fitness centre then there are certain consents that will be required to do this. In terms of section 38 of the Sectional Titles Act, the body corporate has the power to, where practicable, establish and maintain on the common property suitable recreation facilities such as a gym. The powers listed in section 38 must read with section 39(1) which provides that the body corporate's powers must be exercised by its trustees, subject to any other relevant provision in the Act, the rules and any restriction imposed or direction given at a general meeting of the owners. Because the establishment of recreational facilities on the common property authorised by section 38(d) will usually involve the improvement of common property, it can be argued that the exercise of this power is subject to the provisions of prescribed management rule 33 that requires various levels of owner approval. 

The management rules distinguish between “luxurious” and “non-luxurious” improvements. Unfortunately, the rules do not contain any guidelines on how to distinguish between these two. It is suggested that any improvement that is useful and necessary is non-luxurious and any improvement that is desirable, but not necessary is luxurious. Whether the installation of a gym is luxurious or not will depend on the circumstances of the scheme, but it will more likely than not be considered a luxurious improvement. 

PMR 33(1) deals with luxurious improvements to common property. This rule states that the trustees may effect or remove improvements of a luxurious nature on the common property if the owners, by unanimous resolution, so decide. Establishing a gym in a scheme would probably therefore require a unanimous resolution. Consequently, any owner may effectively veto the suggestion by voting against it. 

Owners could be convinced to vote in favour of the establishment of a gym as the facility will increase the value of their property. Furthermore, the members of the body corporate can be reminded that the health and well-being benefits of regular exercise extend far beyond weight loss. Exercise is good for your heart, can prevent osteoporosis, lowers high blood pressure, counters stress and depression, reduces the severity of asthma and diabetic complications, has anti-aging effects, improves sleeping patterns, results in stronger muscles and bones, improves mental function and increases energy. 

The gym equipment can be purchased or hired in terms of section 38(c) of the Sectional Titles Act, which gives the body corporate the power to purchase, hire or otherwise acquire movable property for the use of owners for their enjoyment or protection, or in connection with the enjoyment or protection of the common property. 

The trustees could manage the gym in accordance with their responsibility to control, manage and administer the common property in terms of section 38(j). The body corporate will be responsible for the maintenance costs relating to the gym. These costs could be recovered from the monthly contributions levied on the owners in accordance with their participation quotas. A fitness center could be seen as being of equal benefit to all the owners and it could be suggested that all the owners should make equal contributions to the costs involved. If not all the owners are interested in using the gym, then the expenses could be funded through subscriptions. Both of these cost recoveries could be achieved by making a rule changing the liability of owners to make contributions to these expenses. In this way only those who use the gym would have to pay a fee to maintain the gym. - Carryn Durham

About the Author
Dr Carryn Durham

Dr Carryn Durham

Carryn Durham [B.A LL.B LL.M (Stellenbosch)] is a Specialist Sectional Titles Lawyer at Paddocks, a sectional title and homeowners' association (HOA) specialist firm - www.paddocks.co.za. Carryn provides legal services to Paddocks consulting clients and is part of the Paddocks Club support team, an online support service for the sectional title and HOA community.

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