Understanding your rights to common property in sectional titles

Private Property South Africa

Sectional Title (ST) owners need a better understanding of how ownership of the common property works and what they can and cannot do with it.

So says Andrew Schaefer, MD of national property management company Trafalgar, who notes: “We find that one of the most frequent causes of friction between residents in Sectional Title schemes is misuse of the common property by one or more owners - and that this usually arises from a simple lack of knowledge about where sections actually start and stop and how shared ownership of the common property needs to be viewed.

“For example, we have seen owners - and tenants – decide to block off the section of a walkway that only leads to their front door with a security gate, put a fence around a piece of garden in front of their unit, hang an awning over their balcony from the outside wall of the building, or put up a carport on the roadway in front of their garage.”

In a big complex, he says, there are also always those few owners (usually long-time residents) who will become “territorial” over certain parts of the common property – such as the particular open parking bay that they prefer, the swimming pool which happens to be adjacent to their unit, the stairway that leads to the roof area above their top-floor home, and even their favourite braai spot.

Read more: Parking problems in sectional title schemes

“But fortunately, problems like this are usually quickly resolved when we explain to the owners in question that the actual ‘sections’ in an ST scheme are defined by the interior walls of each apartment or townhouse – and that ownership of an ‘undivided share’ of whatever lies beyond those walls does not mean that they can do as they please on this common property or just appropriate any part of it that they estimate to be their ‘share’.

Schaefer says it is important for ST owners to remember that whatever they do on the common property affects all the other owners and residents. “If you or your guests leave rubbish all over the play area, for example, other residents won’t be able to enjoy it as much, and quite possibly a member of the cleaning staff will have to take time away from the work they should be doing to tidy it up.

“Similarly, if you want to make rules about when the pool or other facilities may be used, or change the appearance of any part of the common property (by painting your home a different colour, for example, or putting a bench and flower pots in the public courtyard), you must first make a written request to the trustees – who represent your fellow owners and members of the body corporate, and have the right to grant or deny your request.”

In addition, he says, if you wish to gain exclusive use of any part of the common property, such as your favourite parking bay or a part of the garden, the trustees will first need to consider what sort of precedent this might set, how it could affect the relative values of all the sections, and who will now be responsible for the maintenance and upkeep of this part of the common property – and the costs involved. If they agree to your request, you will most likely have to pay an extra levy.

“But first, the trustees will need to take steps to formalise the arrangement. Just like alterations to individual sections, changes to the common property can’t be allowed to go ahead without permission or being properly recorded, for the protection of the value of your investment as well as those of the other owners. And alienating any part of the common property can only be authorised by unanimous resolution, which requires 100% owner approval.”

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