I often get queries on who is responsible for the maintenance (including repair or replacement) of windows and doors within sectional title schemes. In this article, I will address the financial responsibility for maintenance of the windows and doors (including garage doors).
In order to answer these questions I will examine:
What divides a section from the common property?
What forms part of the section and what forms part of the common property?
Who is responsible for the maintenance?
How is replacement authorised?
Who is responsible for the costs?
How can the costs be funded?
How are these costs allocated between owner and body corporate?
A draft sectional plan must define the boundaries of each section in the building. The common boundary between two sections, or a section and common property is the median line of the dividing floor, wall or ceiling as the case may be. The boundaries of a section are defined by reference to the floors, walls, and ceilings thereof, or as may be prescribed, provided that any window, door (including garage doors) or other structure which divides a section from another section or from common property, are considered to form part of such floor wall or ceiling.
The “median line” in the context of the drafting of sectional plans, is not a physical thing. It is an imaginary vertical or horizontal line that represents the “mid-points” that are half-way between the outside surfaces and the inside surface of a wall, floor or ceiling, with one half of that wall, for example, on either side of the median line. In terms of section 5 of the Sectional Titles Act (“the ST Act”) where a door or window is set into an exterior section wall, the median line goes through the center of that door or window. The effect of this provision is that windows and doors (including garage doors) in the exterior walls of sections are always partially part of the section (the inner 50%) and partially part of the common property (the outer 50%). The intent of this provision is to make the owner and the body corporate share maintenance and repair costs equally.
In terms of section 3(1)(l) of the Sectional Titles Schemes Management Act (“the STSM Act”), the body corporate must maintain all the common property, which includes the exterior part of any wall, door or window that forms a boundary between a section and common property. In terms of section 13(1)(c) of the STSM Act, the owner must repair and maintain the interior part of any wall, door or window that forms a boundary between a section and common property. Therefore, the expenses (which could include maintenance, repair and replacement costs) in regard to any window or door (including garage doors) in an exterior section wall should be split equally between the owner and body corporate.
If the windows cannot handle the level of wind-driven rain due to its age and design and are beyond effective repair, and the only permanent solution will be a replacement, then the replacement of the windows could either fall within maintenance or be an improvement depending on the circumstances. If, for example, the wooden window frames are replaced with aluminium ones, then the replacement will be useful and necessary.
The process set out prescribed management rule (“PMR”) 29(2) must be followed to authorise the replacement of the windows. Should the trustees wish to effect reasonably necessary improvements to the common property, they must give written notice to all owners. The notice must indicate the intention to proceed with the improvement after a stated date not less than thirty days from the date of posting and provide details of the proposed improvements. The details must include:
The costs of the proposed improvements.
How they are to be financed, including details of any special contributions or loans by the body corporate that will be required for this purpose.
The estimated effect on levies and the need, desirability and effect of the improvements.
On receipt of notice from the trustees, any owner may request that the trustees convene a special general meeting to deliberate upon the proposals. At this meeting, the owners may, by special resolution, approve the trustees’ proposal with or without amendments. If any owner does request a special general meeting, the trustees may not proceed with their proposals until the meeting has been held. They are bound by the terms of any special resolution taken at that meeting. If they think owners may want to meet to discuss the issues, the trustees can save time by convening the special general meeting at the same time they give owners notice. If a meeting is called and no special resolution is taken approving the proposed improvements, The trustees may not proceed with the proposed improvements. If no owner requests a meeting within the notice period, the trustees are authorised to proceed with the improvements.
The body corporate can fund the project by:
Using reserve funds.
Raising a special levy if it is necessary that this is done before the next annual general meeting (“the AGM”).
The body corporate can include the expense in the next budget presented for approval at the AGM.
The cost of repair or replacement of the windows or doors (including garage doors) in the exterior section wall that forms a boundary between the sections and common property should then be split equally between the owner and body corporate.
If you require assistance with drafting the required documentation to authorise the replacement of windows then please contact us at email@example.com or call 0216863950.
Dr Carryn Melissa Durham is one of the most highly qualified Sectional Title Attorneys in the country (BA, LLB, LLM and LLD), Carryn forms part of the Paddocks Private Consulting Division.
Article courtesy of:
Paddocks, the sectional title and home owners’ association specialists