Article by Durban Attorney: Fawzia Khan
Owning a property in a sectional title scheme continues to remain a strong trend in South Africa. This type of ownership is vastly different from owning a free-standing property. For starters, all owners in a sectional title scheme become part of the body corporate, which is a legal entity which can sue or be sued in its own name.
The body corporate makes the rules about the way in which the sectional title scheme will operate. The trustees of the body corporate must be able to effectively manage the affairs of the body corporate.
There are many benefits of owning property through sectional title. Security is the obvious one given our high crime rate in South Africa. That, coupled with other amenities such common property where all neighbours can have access to a community swimming pool, tennis court, large park-like garden are some of the features which may not be available if you bought property on a free-standing plot. Being in a secure environment, getting a good re-sale price from an investment perspective also make sectional title ownership very attractive.
However, there are some drawbacks which also need to be considered. The most important being that by and large you cannot make decisions about your property without first getting the consent from the body corporate. All sectional schemes must have management rules and conduct rules in place. Management rules deals with how trustees are appointed, how meetings are to be conducted etc, whilst the conduct rules focuses on the way in which the owners or occupiers conduct themselves amongst each other. Both these rules must be made known to and available to owners especially new owners.
Disputes can arise if for example your neighbour fails to maintain his section and as a result this causes damage to your section. Would you be entitled to hold back on payment of your levies in this scenario? As a general rule, all owners are liable for maintenance of their own section, whilst the body corporate, through the collection of levies, is responsible for maintenance and upkeep of all common property. If you can prove that the other owner’s negligence and failure to maintain his section, caused damage to your section, then you would have a separate claim against that owner, but you cannot withhold payment of levies based on that circumstance.
Should there be a dispute between an owner of a sectional unit and the trustees of the body corporate or even in other housing schemes such as in a gated estate, the parties can now submit their dispute to the Ombud’s office as a means to get an alternative dispute resolution in place. This means you can avoid having to incur legal costs. The decision by the adjudicator appointed by the Ombud to hear the dispute can be enforced through the courts, which means it can have a binding effect on the parties.
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