BUILDING ALTERATIONS BY OWNERS
This article is upon a seminar presented by Tertius Maree (Tertius Maree Associates) to STASWEST during March 2014
When dealing with alterations to the common property by owners of sections in a sectional title scheme, there are three important points to keep in mind:Alterations or improvements by owners do not equate to improvements to the common property effected by the body corporate, even if such ‘private’ alterations should affect the common property. Accordingly the provisions of Management Rule 33 in respect of luxurious and non-luxurious improvements do not apply.
Trustees do not have superpowers to issue consents left, right and centre in respect of any request that comes their way. Before they consider a matter they should check by which provisions, if any, of the Act or the rules the particular situation is regulated, whether in fact the trustees are endowed with powers, and what the requirements are.
Municipal approval of a building alteration, if applicable, is only one of the requirements with which an owner must comply. The approval of a building plan does not lend carte blanche to an owner to proceed with his project. This misconception stems from a continuing misconstruction that the municipality is the supreme authority in respect of sectional title schemes, whereas the body corporate in fact is. Of course the body corporate does not exercise such authority in a vacuum but within the parameters set by the Act and the rules.
Here is a list of typical ‘private’ alterations by owners, indicating whether or not trustees have authority to grant consent:
- Extensions of Sections NO
- Closure of Balconies (Part of Section) NO
- Internal alterations, not affecting PQ NO
- Structures on Exclusive Use Areas YES
- Chimneys, flues, ducts, plumbing, wiring NO
- Minor external fixtures (locks, burglar bars, safety gates, screens) YES
- Other external fixtures (TV dishes, air conditioners, awnings, etc.) NO
- Subdivision / consolidation of sections YES
So, what are trustees to do when confronted with a proposed (or completed!) alteration and they do not have the required authority to grant or refuse consent?
In ‘slightly edited’ format, section 35(1) of the Act states that A scheme shall as from the date of the establishment of the body corporate be controlled and managed, subject to the provisions of this Act, by means of rules. If such principle is adhered to, as it must, it means that if it is required that the trustees should have authority to deal with something, and the Act or the rules do not provide such authority, an appropriate rule should first be formulated and adopted.
In most instances the Conduct Rules would be the appropriate location for such rules, for which only a special resolution is required for their adoption.
A. Extension of a Section. Procedures for the extension of a section may be summarised as follows:
- Application, accompanied by draft plans and specifications. Determination of conditions to be imposed. Framing of the draft special resolution. Notice of meeting to members.
- General meeting, deliberation and adoption of special resolution, including imposition of appropriate conditions.
- Municipal approval of building plans.
- Physical alterations – construction stage.
- Survey; preparation and approval of draft sectional plan of extension of section.
- Conveyancing; preparation of application for registration, procurement of bondholders’ consents.
- Registration at the Deeds Registry.
- Implementation of adjusted participation quotas and determination of adjusted levies.
- Negotiate and arrange adjustments to insurance cover.
B. Balcony Closures.
Is an appropriate rule in place? IF not, a rule should first be framed and adopted. Different criteria may apply depending upon whether the balcony is a part of the section or an exclusive use area. The nature and effect of the proposed closure must then be considered. Will the balcony space become capable of being utilised as an ordinary room eg a bedroom. An alteration of such nature should not be allowed. To determine potential usage, various aspects should be considered, including the materials used, finishes, and other physical aspects of the enclosure.
The impact upon neighbours is an aspect, which should not be neglected. Similarly the aesthetic impact of the proposed closure is a factor which must receive due consideration.
C. Internal Alterations
Internal alterations should not go unregulated and if appropriate rules are not in place, this should first be attended to. Aspects to consider for such a rule include the following:
- Plans and specifications should be submitted.
- Will weight-bearing walls be affected?
- Is municipal approval of building plans required?
- Conditions regarding time-frame, hours of work, access, noise, rubble removal, etc.
D. Structures on Exclusive Use Areas
This is already regulated by the Management Rules and the introduction of a special rule is therefore not strictly required. Such alterations could nevertheless benefit from a general rule regulating construction work.
Management Rule 68(1)(vi)states the following:
An owner –
Shall not construct or place any structure or building improvement on his exclusive use area without the prior written consent of the trustees, which shall not be unreasonably withheld (provided that) the provisions of section 24 and section 25 or other relevant provisions of the Act or the rules will not be contravened.
E. Minor External Alterations
Standard Conduct Rule 4 regulates the following types of alterations:
- Locking device,
- Safety Gate,
- Burglar bars or other safety device,
- Insect / animal screen.
The rule is not sufficiently comprehensive and would benefit from an augmentation to include the aspects mentioned in the next part.
F. Other External Alterations
To optimize utility of the rule, an extended Conduct Rule 4 should be adopted making provision for items such as:
- TV dishes
- Air conditioners
- Balcony enclosures
- Chimneys and flues
- Building projects affecting the interiors of sections.
G. Subdivision and Consolidation of Sections
Although trustees do have powers to grant consent for such exercises, these activities necessarily include a certain amount of physical building activities, which must also be regulated. Although trustees would be entitled to link conditions to their consent, an extended Conduct Rule 4 would also be of benefit in this respect.