May 8, 2024 Physical Management, Sectional Title Management

By Auren Freitas dos Santos

Background

In a notable judgment from the South Gauteng High Court, the court addressed a dispute between a body corporate and an owner regarding unauthorised structural alterations made by the owner to his unit within the sectional title scheme.

Facts of the Case

The owner made alterations to his unit, which had a patio without any overhead covering, by adding a motorised Louvre style roof and a tiled veranda thereby converting the patio into a completely enclosed space which was then used as an entertainment space.

These alterations, done without the approval of the body corporate’s trustees, encroached upon the common property of the scheme. Initially, the owner had sought approval for these alterations but proceeded with construction even after his application was denied by the trustees, who cited concerns about encroachment and potential issues with maintenance of underlying water and sewage lines.

Legal Proceedings

The body corporate, after several communications and warnings to the owner, sought a demolition order due to the unauthorised constructions. In response, the owner proposed to regularise the alterations through approvals from the local municipality and the body corporate and to register the changes with the Surveyor-General and the Deeds Office, a suggestion that was not accepted by the body corporate.  The body corporate proceeded to launch an application in the High Court seeking a demolition order.

Preliminary Grounds Raised by Respondent

The owner opposed this application on every conceivable ground.  One of the grounds raised by the owner was that the trustees failed to exhaust internal remedies or refer the matter to the Community Schemes Ombuds Service (CSOS).

The Court held that in a prior case (The Body Corporate of the Sorrento Sectional Title Scheme, Parow v Leozette Koordom & Another), the court discussed the issue of whether matters related to sectional title schemes should be referred to the CSOS first. In that case it was determined that unless exceptional circumstances justified otherwise, matters should be referred to the CSOS as the first instance for resolution.

The Court held that the exceptional circumstances necessary to bypass the CSOS are to be determined on a case-by-case basis according to the guidance given in another matter (Heathrow Property Holdings No 33 Close Corporation and Others v Manhattan Place Body Corporate and Others).

In this particular case, the Court held that the owner’s actions involved significant encroachment on common property, which is a matter of grave concern to any body corporate. The owner had constructed permanent alterations without approval, including a concrete veranda over critical water and sewage lines on the common property. This not only appropriated common property for personal use but also created practical problems for the body corporate.

The Court held that pursuing a demolition order through the Ombud, assuming it had jurisdiction, would likely result in further legal proceedings, exacerbating the concerns of the body corporate.

Given the exceptional circumstances presented by the significant and potentially precedent-setting nature of the owner’s actions, the Court deemed it appropriate to address the matter without further delay. Therefore, the court decided to accept the application rather than referring it to the CSOS.

Court’s Decision

The Court rejected the owner’s argument that the Louvre roof is not a permanent structure, finding that although the Louvre may be retractable, the awning and pillars are all fixed and that once installed they became fixtures to the building.

The Court highlighted that trustees have a fiduciary duty to ensure that an estate is managed properly in accordance with the rules, the Sectional Title Schemes Management Act (“STSMA”) and the law in general. In this role trustees have a duty to ensure the financial sustainability of the scheme and maintain the overall look and feel of the scheme.

The court ultimately ordered the owner to demolish the unauthorised structures within 30 days, failing which the body corporate was authorised to do so at the cost of the owner.  The owner was also ordered to pay the costs of the application in the scale as between attorney fees and own client.

Implications of the Judgment

This judgment serves as a crucial reminder for both trustees and owners within sectional title schemes about the legal requirements and processes for making alterations to common property. It underscores the role of trustees in safeguarding the collective interests of all owners and the importance of adhering to the established rules and procedures and the consequences of non-compliance by owners.  This judgment also confirms that under exceptional circumstances an applicant may bypass the CSOS, and that urgency may in some instances be considered as an exceptional circumstance warranting intervention by the Courts.

Courtesy: The Advisory - Community Schemes Specialists

Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, is a Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law. Reach out to him at [email protected] for assistance with any disputes in your community scheme.

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