Sectional titles or town houses, as they are affectionately known, have become the “go to” for first time home buyers as they are structured, safe, secured and cost a lot less than standalone houses. However, what happens if there are structural damages to the property? Who will be responsible for fixing these? In this article we tackle these questions.

Sectional title units are governed by body corporates in terms of the Sectional Title Schemes Management Act 8 of 2011 (“the Act”). Section 3 (1) of the Act provides that a body corporate must perform the functions entrusted to it by or under this Act or the rules, and such functions include the duty to maintain all the common property and to keep it in a state of good and serviceable repair.

What qualifies as common property?

Section 1 of the Act defines common property, and in relation to a scheme, as:

(a) The land included in the scheme;

(b) Such parts of the building or buildings as are not included in a section; and

(c) Land referred to in section 5(1) (d).

In layman’s terms this would mean anything from the structural foundation of sectional title scheme to the common pool.  The body corporate is therefore liable for all structural damage to the common property.

According to StraussDaly (in an article published on the 27/11/2017), if the damage is caused by subsidence of the structural foundation, the insurance cover issued to the body corporate should solve the problem.

What recourse does an owner have against the body corporate that refuses/ fails to fix damages to the common property?

The owner can refer the dispute to the Community Schemes Ombudsman Services (CSOS).  The Ombudsman is regulated by The Community Ombudsman’s Act 9 of 2011. CSOS deals with a range of disputes, including:

1. Financial issues such as the correction of unreasonable contributions;
2. Behavioral issues such as the removal of pets;
3. Scheme governance issues such as confirming that scheme governance provisions are invalid;
4. Disputes relating to meetings and resolutions such as the requirement that a scheme hold a meeting;
5. Management services, such as the appointment of an executive managing agent;
6. Physical works, such as the carrying out of repairs; and
7. General or other issues, such as access to information

This is not an exhaustive list and adjudicators may make whatever order they deem necessary.
In terms of Section 48 of the CSOS Act, adjudication orders are enforceable just as the Magistrate Court or High Court orders depending on the quantum or nature of relief granted in the determination.

Tips:

• Before purchasing a home have your legal provider explain to you what your obligations will be towards your new home and the obligations of the body corporate
• If there is a valid claim speak to your legal services provider as quickly as you possibly so that they may help you refer your claim to the CSOS.