Written for Property Poser

The question posed to our Property Poser panel this week centres on cracks in a tiled floor of a unit in a sectional title complex.

The reader, who purchased the unit from the developer about five years ago, says the cracks that have appeared are so wide that one can see right through them.

His question is whether he, as the owner, the body corporate or the developer is responsible for the repairs.

The first remedy that comes to mind is that administered by the National Home Builders’ Registration Council (NHBRC), says Jacques Ehlers from Du Toit Strömbeck Attorneys in Port Elizabeth.

“The council was established in terms of the Housing Consumer Protection Measures Act (of 1998) to protect the interests of housing consumers and to regulate the home building industry.”

Ehlers says the act ensures that builders of new homes register with the NHBRC and that such homes are covered by a “deemed warranty”.

“This warranty obliges a builder to rectify defects that occur in the first three months after occupation, roof leaks in the first 12 months and major structural defects within the first five years.”

The two important issues to consider, says Ehlers, are whether the cracks qualify as a major structural defect and, secondly, the time period concerned.

Ehlers says the act reads that a major structural defect is one: “. . . which gives rise or which is likely to give rise to damage of such severity that it affects or is likely to affect the structural integrity of a home and which requires complete or partial rebuilding of the home or extensive repair work to it . . .”

“It is a factual enquiry which is obviously subject to prescribed limitations, qualifications or exclusions.”

Charlotte Vermaak from Chas Everitt in PE says it is not clear how close the reader is to the five-year mark, but should he still fall within this time period, the first step would be to approach the builder to fix the problem.

“Should the builder no longer exist or fail to comply with the obligation to fix any structural defects, the council may be obliged to pay out compensation to the homeowner with regard to the defect.”

In the event of the period having lapsed and the homeowner no longer having a claim against the builder in terms of the NHBRC regulations, one has to establish the cause of the cracks, according to Vermaak.

“If these were caused by, say, problems with the foundations, the costs of the repairs shall be borne by the body corporate from its levy fund.”

Vermaak says since the owner only owns his section to the median line of its floors, walls and ceilings, the foundations, “outer skin” and roof of the building are common property.

“It is unlikely that such severe cracks are due to bad workmanship relating to the laying of the tiles, but in such an unlikely instance the repairs would be the responsibility of the owner.”

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