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Leaking balconies in ST schemes

13 May 2014

In many sectional title schemes, owners of units with balconies often want to maximise on the space by enclosing the balcony. 

If the balcony forms part of the scheme’s common property, the body corporate is responsible for its repair.

This can be a huge asset but the problem with this is that enclosing a balcony tends to lead to rainwater leaking into the units below. 

This is according to Michael Bauer, general manager of IHFM, who says the resulting damage to electrical equipment, furniture, carpets or wooden flooring and other goods has to be added to the problem that must be dealt with. 

He says before any action is taken, it is essential to find out who owns the balcony in question. It could be part of a member’s section, common property or an exclusive use area. This can be ascertained by studying the plans for the scheme, as these areas should be clearly marked. 

If the balcony forms part of the scheme’s common property, the body corporate is responsible for its repair. 

If it is an exclusive use area but has been ceded to the unit owner of the section it links with, that owner, according to Section 44 (1c) of the Sectional Title Act, is responsible for it. 

If the balcony is part of a section, that section owner is responsible for its condition and repairs. 

Bauer says it sometimes happens that the owner of a unit fails to comply with notices asking him to attend to leak problems in his balcony. In these cases, the Prescribed Management Rule 70 allows the body corporate to repair the balcony, after giving 30 days notice, and to recover ‘reasonable’ costs from the owner. According to Bauer, the word ‘reasonable’ implies that three competitive quotes should be obtained. 

He says it could also happen that a stubborn owner refuses to allow inspection or repair teams access to his unit. The trustees then have two legal options: they can refer the matter to arbitration in terms of Prescribed Management Rule 71 or they can apply to the High Court for an urgent application or interdict to gain entry to the unit. 

The question in many cases is who pays for damages caused by a leaking balcony? 

If the repairs are undertaken in a reasonably speedy fashion and prove effective, the accidental damages originally caused are usually covered by the body corporate’s insurance. If repairs are done late or inefficiently and the damage is increased by this, the insurer has the right to reject the claim and it would become the owner’s responsibility. 

In a recent case, Bauer says the arbitrator found that an exclusive use owner had failed to fix a leak in his patio in good time even though he had been made aware of it. He says the owner was held responsible for all the damages, the argument being that, had he acted faster, these would have been far less serious. 

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