Housing headaches
Gated communities have mushroomed in KwaZulu-Natal, mainly because of security concerns, but owning a sectional title unit can bring with it other hassles, writes Bonny VerweyJanuary 11, 2006 Edition 1
Bonny Verwey
They may be safer and less work than stand-alone houses, but sectional title units can also cause home owners endless headaches. Many sectional title property owners have found themselves in tricky and uncomfortable situations with neighbours whose non-compliance with the sectional title laws have impacted on them.
An amendment to the law governing sectional title units could help clear things up for owners. However, the new legislation will only be implemented several years down the line to allow sectional title property owners to get their houses in order. So, until then, problems may persist. The awkward situation in which a La Lucia resident found herself is a case in point. Isabel Smith’s (not her real name) adjoining neighbour extended his unit beyond the permitted space without receiving permission.
Smith became anxious about the close proximity of their houses and the increase in rates prompted by this extension. However, when the neighbour stopped paying his rates, and letters of demand to Smith and her neighbour were sent to the body corporate, she became concerned that the property – and her home – would be auctioned to recoup the outstanding rates her neighbour had not paid.
“Whenever I tried to find out what was going to happen to my home, I received different answers.
“I was told that the options would be that the property would be auctioned for the outstanding rates, or that the case would go to court and I would have to prove that my portion of the rates was up to date,” she said. Smith and her neighbour made up the body corporate for their sectional title property, so they would both have to have been in agreement before one party could apply for permission to extend their home. They would also have to share the rates equally. However, she said that no approval had been gained and, to make matters worse, her neighbour had not been paying his rates.
Barbara Shingler, Chairman of the KwaZulu-Natal Association of Managing Agents and the Managing Director of Ballito Estates, advised that Smith seek legal advice from a specialist in sectional title law. She said that all body corporates, regardless of how many members they had, should agree on an annual budget and stipulate a levy which would cover all property expenses, including rates, water, electricity and the maintenance of the property.
Levies
“Everyone should be in agreement about this levy, and the body corporate must strictly manage the collection and implementation of these levies. There should also be a person or company to manage the books of the body corporate,” Shingler said. Marina Constas, a specialist sectional title attorney who co-authored a book entitled Demystifying Sectional Title, said that some of the most common problems associated with sectional title units related to parking, carports, garages, extensions, balcony enclosures, the ownership of surrounding walls and the collection of outstanding levies.
Constas said that many owners disregarded the rule that parking in certain areas of a complex was unlawful, and advised that affected owners mention the Model Conduct Rule 3(2), which states that the trustees can request the towing of vehicles illegally parked on common property at the vehicle owner’s expense.
“The problem with this is that most towing companies are reluctant to get involved.
“There also appears to be a great deal of confusion surrounding garages and carports, and whether people own them as exclusive use areas or not. Common property parking areas could easily be allocated as exclusive use areas using Section 27A of the Sectional Titles Act. That is, by creating exclusive use areas through the rules of the complex,” she said. Constas added that many owners were of the mistaken belief that if a wall surrounded their garden, it automatically meant that they owned that garden. She said that investigation could reveal that the garden was, in fact, common property.
“Extensions and enclosing balconies are another major issue in our complexes.
“Trustees are giving permission for these major changes when they have no authority to do so. It is not a case of trustees getting a letter and granting permission. Many people treat the Sectional Titles Act as a guideline. It is not a guideline, it is prescriptive,” she said. Constas explained that when it comes to extensions, the problem does not lie in obtaining a special resolution from the body corporate, but rather in the process to be followed thereafter.
“Many owners are so happy to receive permission in the form of the resolution that they forget the next steps.
“An architect or land surveyor must redraw the sectional plan, amend the participation quotas, and request approval from the Surveyor General’s office. The Registrar of Deeds must then register the sectional plan of extension and make the appropriate endorsement on the title. That is the expensive part,” she said. In another matter, Constas once challenged an owner who complained about the fact that the law did not assist trustees in collecting outstanding levies. She showed how proactive trustees, assisted by competent and efficient managing agents, could adopt a zero-tolerance attitude towards owners who failed to pay their levies.
“If an owner doesn’t pay, he must be handed over to attorneys without delay. Our legal system works whether it’s just a summons that is needed or whether we have to attach a unit.
“It is inconceivable that an owner can owe the body corporate between R30 000 and R40 000. How is that allowed to happen?
“That brings me to the question of whether an owner who is in arrears with his levy should be allowed to be a trustee? The answer should be an unequivocal “no”. And why? Because the trustee who owes money is not easily going to hand himself, or any other debtor in the complex, over to be sued,” she said.
Amendments
“The latest amendments to the Act and regulations emphasise the importance of filing a copy of Management and Conduct Rules at the Deeds Office.
In fact, the auditor of the complex must now confirm at the annual general meeting that the rules have been filed.”
Constas added that until owners and trustees understood what they were buying into, there would continue to be disputes in the complexes. She said that trustees in particular had a duty to act with skill and care and that they should be compelled to do so by other owners. A new sectional title law, promulgated in May 2004, will see sectional title units being rated and taxed individually. Sectional title owners will soon be directly responsible for the payment of their rates and taxes. However, the law will take four years to come into effect.
