This week’s Property Poser reader question comes from a lady who bought a flat for investments purposes some two years ago.
When she recently inspected it, she realised that there was water damage in the bathroom. The paint on the walls was flaking and the ceiling was completely bare.

A plumber concluded that the water was coming from the apartment above hers and she proceeded to inform the managing agent and trustees.

It seems the owner of the offending apartment has not paid his levies for the past two years and no one is able to reach him.

The reader does not want to spend money on repainting the bathroom before the problem is sorted out. In addition, renovations to the outside of the building has not materialised even after a special levy was paid by owners.

According to Verity Bigara from Rawson Properties Port Elizabeth all owners in a sectional title scheme are members of the body corporate. She says Section 37 of the Sectional Titles Act Nr 95 of 1986 deals with its functions.

“These include the establishment of a fund to cover administrative expenses, repairs, upkeep, control and management of the common property as well as for the payment of common expenses like insurance and municipal charges.”

Bigara says the body corporate may require all owners to make contributions to the fund and the extent of these is determined from time to time according to the particular requirements of the scheme.

She says the functions and powers of the body corporate shall be performed and exercised by trustees, who are elected by the owners at the annual general meeting. “They are obliged to control, manage and administer the common property in terms of the powers given to them by the act.”

Bigara says it is in the interest of any sectional title scheme that the trustees perform their powers and duties diligently, as this will ensure that the financial position of the body corporate remains healthy and that the buildings and common property are kept in a good state of repair.

Sonet Pieterse from Sonet Pieterse Attorneys & Conveyancers in PE says the act stipulates that an owner shall be obliged to give access to any person who has been authorised by the body corporate to do maintenance work, albeit with reasonable notice. “If it is an emergency, no notice is required.”

In the case of the reader, the trustees must instruct a plumber to carry out the necessary repairs to the unit above the reader’s, says Pieterse. “If the owner cannot be reached, the trustees must nevertheless enter the unit and proceed with the repairs.”

She says the trustees must also submit a claim to the insurer for damages to the reader’s unit. “If the insurance does not cover these, the body corporate will be liable for the repairs.”

The fact that the owner of the unit above the reader’s is in arrears does not detract from the trustees’ obligation to attend to the necessary repairs from the levy fund, according to Pieterse. “It will, however, be prudent for them to take steps against the owner for recovery of the arrear levies.”

The reader must also submit a query to the trustees regarding the maintenance work for which the special levy was paid, says Pieterse. “If she suspects that the trustees are not performing their duties, she may consider initiating steps for the removal of the trustees from their office.”

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