Written for YourProperty

When it comes to assigning responsibility for the maintenance or replacement of windows in a sectional title complex, it is no open-and-shut matter.

This week’s query comes from a Property Poser reader who lives in an older block of flats where the existing steel window frames have been repainted over the years, to the extent that many do not close properly any more.

As trustee the reader approached the managing agent about replacing his window frames with aluminium ones. Consent was given and he proceeded to pay a deposit for the work to be done.

Later, however, the reader was advised by the agent that he would require the consent of all twenty-one owners in the complex before being allowed to proceed.

At the next trustees’ meeting he was informed that the trustees could notify the owners and so request general consent relating to all future window replacements. Again this would require unanimous approval.

Confusingly, the trustees were later told that the replacements could be done with 80% approval, subject to all owners being notified and a special meeting convened.

The reader would like to know what the correct procedure is.

Prior to a recent amendment of the Sectional Titles Act, the method for establishing liability for maintenance and repair work was to determine whether the windows formed part of the owners’ sections or the common property, says Charlotte Vermaak from Chas Everitt in Port Elizabeth.

“If considered private property, the owners would be responsible. If not, the onus would be on the body corporate.”

Vermaak says there was also a third possibility – the windows could belong to both.

In terms of the amendment to the Act, says Vermaak, the boundaries of a section are now defined in reference to the floors, walls and ceilings thereof.

“Any window, door or other structure which divides a section from another section or from common property is considered part of such a floor, wall or ceiling.”

According to Vermaak, the effect of this amendment is that the median line is deemed to pass through the centre of any window, door or other structure that divides two sections or a section and the common property.

“It has standardised the position regarding the maintenance and repair of windows across all sectional title schemes and means that the body corporate and owner will now share liability.”

Rian du Toit from DTS Attorneys in PE says the management rules further obligate owners to do nothing to their sections or exclusive use areas that prejudices the harmonious appearance of the building.

“The reader will need to determine whether replacing the existing window frames with aluminium ones can be regarded as maintenance or an alteration to the common property.”

If it is deemed to be maintenance, Du Toit says the owner, in terms of section 44(1) of the Act, and the body corporate, under section 37(1), will be required to effect the necessary repairs.

Furthermore, says Du Toit, it must be determined whether the installation of an aluminium frame will contribute to the harmonious appearance of the building.

“If it is possible to salvage the existing frames, then the installation of aluminium ones may fall under a different management rule (33), which deals with luxurious and non-luxurious improvements. This requires trustees to act in a specific manner when obtaining consent for such improvements.”

Once the window frames have been classified as maintenance or an improvement, Du Toit says the reader will be in a position to determine what form of consent is required and who must bear the cost.

Ask your property related questions here.