Enclosing Patios in a Sectional Title Property Scheme ((Michael Bauer, general manager of the property management company, IHFM - 14 Jun 2016)

7 Jul 2016

“Once decisions are made and rules set, it becomes very difficult after the fact to change rulings. It is better to have these set in the beginning so the owners know upfront what the procedures are for approval of structures on their balconies or patios to avoid problems later,” says Bauer.

Michael Bauer, general manager of the property management company, IHFM, says if the habitable space of the unit increases, it becomes a larger section and section 24 of the Sectional Titles Act applies
Bauer says this would then mean that the PQ factor is higher, and thus the unit’s levy will be higher.

“The question arises as to whether this is habitable space, is situated on an enclosed exclusive use area, common property, or is already part of the section,” he says.

“The owner or the trustees would have to check the section plans of the scheme and check what this area is demarcated as on the sectional plans and then establish what the enclosure has created - habitable or enclosed space.”

Bauer says there is no specific definition of what is habitable or enclosed space in the Sectional Titles Act, but whatever decision is made by the trustees becomes a precedent for the rest of the scheme and they must careful in deciding what the ruling will be.

If it is decided that it is habitable space, then Section 24 of the Sectional Titles Act comes into force, which states: “If an owner of a section proposes to extend the limits of his or her section, he or she shall with the approval of the body corporate, authorised by a special resolution of its members, cause the land surveyor or architect concerned to submit a draft sectional plan of the extension to the Surveyor-General for approval”.

Keeping the above in mind, Bauer says it means that the owner can only extend the floor area of his unit onto common property if they have a special resolution from the body corporate.

This resolution would have to be called for at a special general meeting, and the owner would also have to amend the sectional plans. This is done at the owner’s expense, and these amended plans must then be submitted to the Deeds Office.

“The new PQ factor will be calculated based on the additional square meterage. All this must be done before construction commences,” says Bauer.

“If the owner encloses his balcony without consent, they are contravening the Act, and can be compelled to restore the unit to its original state at their own expense. If they refuse, the trustees can then call for arbitration or a High Court application, which will force the owner to do so.”

He says a less complicated situation is if the trustees determine that the enclosure is merely an enclosed exclusive use area, in which case all that is needed is permission from the trustees.

“A written application must be submitted to the trustees before the owner goes ahead with any enclosure, and the draft plans must be submitted. The owner must also declare that they will not be using this space as habitable space,” says Bauer.

He says the conduct rules must be consulted before any changes can be made to a unit, so if restrictions are stipulated in the rules, there might be changes to these needed before any work can take place.

“There are usually stipulations in the conduct rules regarding the appearance of the enclosure and, sometimes, the standards of the contractor employed to do the job,” says Bauer.

He says the installation standard and maintenance of these enclosures is also a contentious issue. “If there are leaks due to bad workmanship then who pays for the damage?” is a question that is brought up.

“It is important for the body corporate to be strict in setting the standards, they should have a list of preferred installers or contractors and appoint a professional, if need be, to set the guidelines for installation,” says Bauer.
“Once decisions are made and rules set, it becomes very difficult after the fact to change rulings. It is better to have these set in the beginning so the owners know upfront what the procedures are for approval of structures on their balconies or patios to avoid problems later.”