David Martin Ogilvie Thompson LLB (NMMU), LLM (NMMU) A practicing Attorney with rights of appearance in the High Court of South Africa, based in the Cape Town litigation department and assisting with litigation at the Somerset West branch. Previously a Director of a firm in Port Elizabeth, David joined STBB in February 2017 as a Senior Associate in the litigation department, specializing in all aspects of General Litigation, including Corporate & Commercial Litigation, Property Litigation, Eviction Law, Insolvency Law, Admin Law and Contract Law. David also conducts research and Legal Updates for estate agents.

Blog | Rising Damp in Sectional Title Schemes

Many sectional title owners are under the impression that their body corporate is automatically responsible to arrange and pay for the repair of damage to their section if it results from some defect or failure in the common property.

Maintenance duties of role-players

The basic maintenance and repair responsibilities of role-players in a sectional title scheme are set out in the Sectional Titles Schemes Management Act, 8 of 2011 (STSMA). Section 3, with the heading “Functions of the body corporate” and section 13, titled “Duties of owners” provide the essentials. These sections provide that the body corporate must maintain all the common property and keep it in a state of good and serviceable repair whilst, on the other hand, an owner must repair and maintain his or her section in a state of good repair.

What is the ‘common property’ that the body corporate must maintain?

“Common Property”, in terms of the Sectional Titles Act, 95 of 1986 (the STA) includes the land on which the building or buildings is or are situated. Apart from land, the common property also comprises all parts of the building or buildings which are not included in a section, for example the outer shell, the roof and the foundations of the building that are intended to serve all the sectional owners. The STSMA reflects a similar definition of common property.

The question arises as to where the boundaries between a section and the common property lie. The STA provides a definite answer but it is hidden in technical language. Without discussing the legal-technical aspects, it is sufficient for purposes of this article to state that the boundaries of a section reaches to the middle of the floor, the middle of the walls and the middle of the ceiling board that separates the ceiling cavity from the rooms below. If you own a freestanding housing unit in a sectional title scheme, the inner half of the walls will be part of the section, while the outer half of the walls are common property. Up to the middle of the ceiling board is part of the section, and the roof is common property. This is important because, as was indicated before, the owner is liable for maintenance of his part of the section, and the body corporate is responsible for maintenance of the part of the section that is common property. Doors and windows are not always positioned exactly in the middle of a wall. Amendments introduced to the STA in 2011 determine that the median (`middle’) line is deemed to pass through the centre of any door/window or other structure that divides two sections or a section and the common property. This means that, in principle, the body corporate is always liable to share the costs of maintaining doors and windows if the `outer part’ is part of the common property. This means that, where, for example, an owner’s leaking shower causes damage to a section below, the owner must have his shower repaired, and where a leaking roof causes damage to sections below, the body corporate must repair the roof.

Who is liable for ensuing damage?

Whilst the STSMA apportions the legal responsibility for maintenance and repair of the common property to the body corporate, and maintenance and repair of sections to their owners, it does not deal with a body corporate’s responsibility for consequential (ensuing) damage. No automatic liability follows. Since the STSMA does not expressly deal with the question of liability to pay for consequential damage to a section, which is caused by defects arising from the common property, an owner will have to look to the common law remedies if the body corporate is not willing to pay for the cost of repair.

The common law requirements for the recovery of damages (i.e. pure economic loss) will have to be applied in order to hold the body corporate liable for such consequential damage. An owner may therefore request the body corporate to pay for the damages caused by defects arising out of the common property, but if the body corporate refuses to pay, the owner must then proceed to either enforce their common law rights, or consider filing an application with the Ombud against the body corporate for an order requiring the them to have the repairs and maintenance carried out. In this regard, the Community Schemes Ombud Service Act, 9 of 2011 (CSOS) finds application. Section 38 of CSOS allows an owner to approach the Ombud with an application if such person is a party to or affected materially by a dispute.  A “dispute” is defined as:

“…a dispute in regard to the administration of a community scheme between persons who have a material interest in that scheme, of which one of the parties is the association, occupier or owner, acting individually or jointly”

In terms of Section 39 of CSOS, an application made in terms of section 38 must include one or more of the following orders: “(6) In respect of works pertaining to private areas and common areas – …(a) an order requiring the association to have repairs and maintenance carried out”.