Questions often arise regarding who is responsible for the maintenance and repair of sections, exclusive use areas (EUA’s) and the common property in sectional title schemes. To understand this issue, one first needs to understand the terms “section”, “EUA” and “common property”. The Sectional Titles Act (STA) contains definitions of these terms.
A section is an area depicted as such on the sectional plan of the scheme. As a general rule, a section is 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 maid’s quarters (there can be deviations to this. For example, covered carports are sometimes depicted as part of a section – but this is not that commonly encountered).
The owner of a section owns what is contained within the median (centre) line of the walls, floors and ceilings. Simply stated, everything which falls outside the individually owned sections is common property. Examples of common property are, the land in the scheme, external stairways and passageways, lifts, the outer skin of the building, the roof and the foundations.
“EUA’s” are a part or parts of the common property which are designated or allocated for the exclusive use of 1 or more owners. The most common examples of EUA’s are gardens, yards and parking bays. EUA’s can be created in a number of different ways but this is a separate topic which is dealt with in another 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 (including 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.
People are often surprised to hear that the Body Corporate (and not the owner who enjoys the use of the EUA) is responsible for the repair and maintenance of the EUA. This is because people sometimes believe that EUA’s are “owned” by the person who enjoys the exclusive use of the area in question. This is however not the case. EUA’s remain a part of the common property notwithstanding the fact that an owner or owners have been granted exclusive use of that area. The Body Corporate accordingly retains the responsibility for maintaining and repairing EUA’s.
However, the owner who enjoys exclusive use of an area does have the duty to maintain it in a “neat and tidy condition”. In addition, although there is no obligation on the holder of an exclusive right to maintain or repair the EUA, the Sectional Title Schemes Management Act (STSMA) states that the owner who has rights of exclusive use to an area is responsible for all the costs relating to these areas, including the costs of repairs and maintenance. As a general rule the Body Corporate will impose an additional levy on the holders of EUA’s to cover the costs of the repairs and maintenance of the EUA.
Thus, although the obligation to maintain EUA’s rests with the Body Corporate, the cost of maintaining an EUA is borne by the holder of the exclusive use right.
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.
(Disclaimer: This article is for information purposes only and do not constitute legal or other professional advice)
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