MYTH BUSTERS – The sectional title edition (Part 1)

By Ané de Klerk

If you have ever watched the popular Discovery Channel television show “Mythbusters”, you will know that some myths are so entrenched in popular belief that we are left stunned when they are proved inaccurate. In this article, I will dispel 3 common myths members of bodies corporate tend to live by.

1. “The owner who caused damage to my unit is liable for the insurance excess payable to get my unit fixed.”

Although the above statement has all the signs of a perfectly logical argument, it is in fact no more than myth. Section 13(1)(b), read together with section 13(1)(c) of the Sectional Titles Schemes Management Act (“the STSMA”) make it clear that an owner is obliged to maintain his or her section in a state of good and serviceable repair and to “pay all charges, expenses and assessments that may be payable in respect of his or her section”. An owner is therefore compelled to pay the insurance excess charged for an insurance claim relating to repairs to their unit.

With that being said, the owner will have a claim in terms of the Law of Delict against the owner who caused the damage. The 2 owners can reach an agreement whereby the owner who caused the damage reimburses the other for the costs incurred as a result of the damage; however, if the owner fails and/or neglects and/or refuses to reimburse the owner who has suffered the damage, such owner can approach the Community Schemes Ombud Service or the Small Claims Court for relief.

2. “My personal information and that of my tenant is just that – personal, and I do not have to share it with anyone.”

The argument that most owners usually pair with the above myth is that they are protected by the Protection of Personal Information Act, No 4 of 2013 (“POPI”) and that they therefore to not have to divulge any personal information to the trustees or managing agent of their body corporate. In this regard, it is important to note that the POPI is not yet in force; however, even if it were, one has to remain mindful of its purpose, which is to ensure that institutions that collect, process, store and share someone’s personal information do so in a responsible manner and that they are held accountable if they abuse or compromise the personal information they have acquired. This certainly does not mean that, when you are required by law to furnish your personal information, you may refuse to do so.

Section 13(1)(f) of the STSMA compels every owner to notify the body corporate of any change in ownership or occupancy in his or her section and of any mortgage without delay. When read together with Prescribed Management Rule 27(2)(b), it becomes clear that every owner is to furnish the following information to the person duly authorised by the body corporate to prepare and update its records:

• the owner and tenant’s full names;
• the owner and tenant’s identity numbers (or passport numbers if they are not South African citizens);
• the address of the section owned by the owner and being leased by the tenant;
• the mailing addresses of both the owner and the tenant;
• the owner and tenant’s telephone numbers, and
• the owner and tenant’s email addresses.

3. “My unit is my property and I don’t have to grant access to anyone if I don’t want to.”

While it is true that those who own property enjoy certain protected rights, the rights of those who own a unit within a sectional title scheme are limited by the laws that govern community scheme living. One such example is an owner’s right to refuse access to his unit being limited by section 13(1)(a) of the STSMA, which states that an owner must permit any person access to their unit and/or exclusive use area if said person needs access in order to:

• inspect the owner’s unit or exclusive use area, and
• maintain, repair or renew pipes, wires, cables and ducts in the section capable of being used in connection with the enjoyment of any other section or common property, or
• ensure that the STSMA and the rules are being observed.

Such person may access the owner’s unit and/or exclusive use area provided that he or she:

• is authorised in writing by the body corporate;
• accesses the unit and/or exclusive use area during reasonable hours, and
• has given notice that such access is required at such reasonable time.

Take note however, that the legislator adds that no notice is required in case of an emergency and that it is specifically stipulated that notice is to be given, rather than that “approval is to be obtained”. Therefore, if the above provisos are met, an owner does not have the right to grant or withhold his or her approval (and even if they do so, it would be an irrelevant act). The owner will have no choice but to allow such person access to the unit.

Should you, now or in the future, find yourself struggling to obtain access to an owner’s unit, to get an owner to provide you with their or their tenant’s personal information or to get them to pay the excess for their insurance claim, give the writer a call on 021 686 3950 or send an email to [email protected].

Courtesy: Paddocks