Written for Property Poser
A reader who lives in a sectional title complex has asked the Property Poser panel about the administration of the common property in such a complex.
She suspects that the common property in her scheme is being used for the benefit of the body corporate, which has rented a certain portion of the common property to one or more third parties.
Her major concern is that the security of the scheme has been compromised by these non-residents being allowed access to the rented property. It seems that they, in turn, have visitors of their own, further compromising the scheme’s security.
Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town, says it is the duty of the body corporate to administer the common property but that this must be for the benefit of all owners.
Van der Merwe says the right to let out the common property is contained in section 17 of the Sectional Titles Act.
“According to the Act, the owners and holders of a right of extension may, by unanimous resolution, direct the body corporate to alienate or let the common property or any part thereof on their behalf.”
Van der Merwe says the body corporate will, not withstanding the provisions of the Deeds Registries Act, then have the power to deal with the common property in accordance with the directive given and execute any deed required for the purpose.
“This is of course subject to compliance with any law relating to the subdivision of land or the letting of a part of it.”
It is clear from the above that the body corporate’s right to let the property extends from the voting and unanimous resolution by the owners in the scheme, says Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West.
“The purpose for the letting of the common property or a portion thereof would generally be to generate funds in the form of rental income.”
Hill says these funds would normally be used for the administration and maintenance of the common property and to bolster the coffers for future repairs, thereby alleviating the burden on owners to contribute.
“It’s interesting to note that the concept of a lease under section 17 of the Act is defined as one that was entered into for a period of not less than ten years or for the natural life of the lessee or any other person mentioned in the lease.”
Alternatively, it is one that is renewable from time to time at the will of the lessee indefinitely or for periods that amount to not less than 10 years in all, says Hill.
“It is required that the lease of common property be endorsed against the schedule of conditions filed with the sectional plan, and a diagram – approved in accordance with the relevant provisions of the Land Survey Act – must be annexed to the agreement of lease.”
Hill says it could be useful for the reader to enquire as to whether the lease satisfies the requirements for validity and to then consider the manner in which the body corporate should be approached.
To ask a property related question, visit www.propertyposer.co.za.
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On behalf of:
Rawson Properties Helderberg & Miller Bosman Le Roux Attorneys