I have been asked quite a few questions recently relating to the responsibility of owners and the body corporate to maintain their sections and the common property respectively in sectional title schemes. To understand this issue, one first needs to understand the terms “section” and “common property”.
A section is an area depicted as such on the sectional plan of the scheme. As a general rule, a section must be an area confined by walls, a floor and a ceiling. The most common examples of residential sections are flats / apartments, townhouse dwellings, garages, storerooms and maids quarters. An open parking bay, for example, can never be a section.
The owner of a section owns what is contained within the median (centre) line of the walls, floors and ceilings. Everything which falls outside the individually owned sections is common property. Examples of common property are external stairways and passageways, lifts, the outer skin of the building, the roof and the foundations. Certain areas of common property such as gardens and parking bays are quite often “allocated” as “exclusive use areas”. I will be discussing exclusive use areas in detail in next week’s article.
The owner of a section is responsible for repairing and maintaining his or her section. If, for example, a bath overflows and causes damage to a section, the owner of that section must bear the cost of repair. If lack of maintenance to a section or negligence of the owner of a section causes damage to another section, then the owner of the damaged section is responsible to repair the damage, but such owner will have a claim against the other owner for the damage suffered. Maintenance of the inside of a section such as the painting of walls, the replacing of carpets and the like is the owner’s responsibility.
The Body Corporate is responsible for maintaining and repairing common property (except exclusive use areas). The body corporate must accordingly, for example, maintain and repair elevators, periodically repaint the outside of the building, resurface the tarmac parking area if necessary, effect repairs to the roof and the like.
There are a few exceptions to the rule that the body corporate must repair and maintain any item or part of the structure which falls outside of the individually owned sections. One notable exception relates to the maintenance of the hot water installations (geysers). Geysers are normally found above the ceiling and are therefore situated in what is regarded as common property.However, the owners, and not the body corporate, are responsible for the maintenance and repair of geysers. If a geyser supplies hot water to one section only, then the owner of that section is liable to maintain and repair that geyser. If the geyser supplies more than one section, then the owners of the sections which it supplies are jointly and severally liable to maintain and repair the geyser.
If lack of maintenance of the common property by the Body Corporate or a defect in the common property causes damage to a section the owner of that section has a claim against the body corporate in respect of such repairs. As indicated, the outer skin (walls) of the building, foundations, and roof form part of the common property. If, for example, a crack in an outside wall or a defect in the foundations or a badly maintained roof results in damage to a section, the owner of that section has a claim for damages against the Body Corporate in respect of the cost of repairs to the section.