Sectional Title Schemes: Liability for structural repairs to the common property
07 Dec 2017
Owners of sectional title units are often confronted with the question of whether they have recourse against the body corporate for defects to the foundations of the buildings in the scheme. Problems with the foundations often manifest in the ground floor concrete slab, causing damage to units on ground floor level.
If the damage had been caused by subsidence or landslide, the insurance cover issued to the body corporate should solve the problem. However, if the damages are as a result of a design fault or poor workmanship when the buildings were constructed, a claim will probably be repudiated as not being events covered by the insurance.
The maintenance and repair responsibilities are set out in the Sectional Titles Schemes Management Act 2011. In brief, the body corporate must maintain the common property and keep it in a state of good and serviceable repair, while an owner must repair and maintain his or her section in a state of good repair. The relevant sections are as follows:
Sectional Titles Schemes Management Act 2011
Section 1: Definitions — (1) In this Act and the rules, unless the context otherwise indicates— ….. “common property”, in relation to a scheme, means— …(b) such parts of the building or buildings as are not included in a section; ….
Section 3: Functions of bodies corporate.—(1) A body corporate must perform the functions entrusted to it by or under this Act or the rules, and such functions include—… (l) to maintain all the common property and to keep it in a state of good and serviceable repair;
Section 13: Duties of owners —(1) An owner must— … (c) repair and maintain his or her section in a state of good repair and, in respect of an exclusive use area, keep it in a clean and neat condition.
The Community Schemes Ombud Service Act 2011
Section 38 provides for an owner to approach the Ombud with an application if such person is a party to or affected materially by a dispute.
Section 39: Prayers for relief —An application made in terms of section 38 must include one or more of the following orders: …. (6) In respect of works pertaining to private areas and common areas—….(a) an order requiring the association to have repairs and maintenance carried out; …
From the above definition of “common property” it is clear that the foundations are not part of the section and therefore constitute common property, for which the body corporate is responsible. The question is whether the body corporate is also liable for the resultant damage to sections caused by defects to the section itself.
The Act does not deal with responsibility for consequential or damage to a section caused by defects to the common property. The common law requirements for the recovery of damages in respect of fault (negligent failure to repair), causation, foreseeability of the damages, etc. will have to be applied in order to determine liability.
An owner may therefore have the right to claim the damages from the body corporate should they fail to effect the repairs, alternatively he or she may consider filing an application with the Ombud against the body corporate for an order requiring the them to have the repairs and maintenance carried out.
A very important starting point will be to have the extent of the repairs to both the common property and the unit assessed and the cause of the damage confirmed by a structural engineer and a building contractor.
Should the body corporate refuse to effect the repairs, an owner may then follow either of the above routes for recovery of the damages. The body corporate may, in turn, consider recourse against the developer in terms of any of the construction indemnities which may still be enforceable at that stage.