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Enclosing patios in a sectional title scheme

29 Jul 2015

There is constant discussion and debate on the issue of the enclosure of patios or balconies in sectional title schemes, pertaining as to whether they become part of the section of the owner, in which case his participation quota will be higher, or whether it remains part of the common property, but for the owner’s exclusive use.

Section 24 of the Sectional Title Act states “If an owner of a section proposes to extend the limits of his or her section, he or she shall with the approval of the body corporate, authorised by a special resolution of its members, cause the land surveyor or architect concerned to submit a draft sectional plan of the extension to the Surveyor-General for approval.”

This is according to Michael Bauer, general manager of the property management company, IHFM, who says if the habitable space in the unit increases, it becomes a larger section, which means section 24 of the Sectional Titles Act applies, resulting in the PQ factor being higher and thus the levy will also be higher.

The question arises as to whether this is habitable space, is situated in an enclosed exclusive use area, common property or already part of the section, he says.

“The owner or the trustees would have to check the section plans of the scheme and check what this area is demarcated as on the sectional plans, and then establish what the enclosure has created; habitable or enclosed space.”

There is no specific definition of what habitable or enclosed space is in the Sectional Titles Act, but whatever decision is made by the trustees becomes a precedent for the rest of the scheme, and they must be careful in deciding what the ruling will be, says Bauer. 

If it is decided that it is habitable space, then Section 24 of the Sectional Titles Act comes into force.

It states “If an owner of a section proposes to extend the limits of his or her section, he or she shall with the approval of the body corporate, authorised by a special resolution of its members, cause the land surveyor or architect concerned to submit a draft sectional plan of the extension to the Surveyor-General for approval.”

Keeping the above in mind, Bauer says it means the owner can only extend the floor area of his unit onto common property if he has a special resolution from the body corporate.

This resolution would have to be called for at a special general meeting and the owner would also have to amend the sectional plans.

Bauer says this is done at the owner’s expense, and these amended plans must then be submitted to the Deeds Office.

The new PQ factor will be calculated based on the additional square metreage. All this must be done before the construction is started.

If the owner encloses his balcony without consent, he is contravening the Act, and he can be compelled to restore the unit to its original state at his own expense. If he refuses, the trustees can then call for arbitration or a High Court application which will force him to do so, says Bauer.

A less complicated situation is if the trustees determine that the enclosure is merely an enclosed exclusive use area, in which case all that is needed is permission from the trustees.

A written application must be submitted to the trustees before the owner goes ahead with any enclosure, and the draft plans must be submitted, says Bauer.

“The owner must also declare that he will not be using this space as habitable space.”

The conduct rules must be consulted before any changes can be made to a unit, so if restrictions are stipulated in the rules, there might be changes to these necessary before any work can take place. 

There are usually stipulations in the conduct rules regarding the appearance of the enclosure and, sometimes, the standards of the contractor employed to do the job, says Bauer.

The installation standard and maintenance of these enclosures is also a contentious issue.

“If there are leaks due to bad workmanship, who pays for the damage?” is a question that can be brought up, for example, he says.

“It is important for the body corporate to be strict in setting the standards, they should have a list of preferred installers or contractors and appoint a professional if need be to set the guidelines for installation,” says Bauer.

“Once decisions are made and rules set it becomes very difficult after the fact to change rulings. It is better to have these set in the beginning so the owners know upfront what the procedures are for approval of structures on their balconies or patios to avoid problems later.”
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