SOLACE PLACE

Solace Place, 5 Nathaniel Isaacs Crescent, Durban, Kwa-Zulu Natal

FREQUENTLY ASKED QUESTIONS

1.     Is Solace Place Shareblock or sectional title?

Solace Place is made up of  sectional title units. 

2.     What is Sectional Title?

A Sectional Title Development Scheme (usually referred to as a “SCHEME”), provides for separate ownership of a property, by individuals. These schemes fall under the control of the Sectional Titles Act, No. 95 of 1986 (and its amendments), which came into force on 1 June 1988. This Act replaced an earlier Act (No. 66 of 1971). 

3.     What do you actually own?

You own the inside of the property i.e. the space contained by the inner walls, ceilings & floors of the unit. You are entitled to paint or decorate or undertake alterations as desired, providing such alterations do not infringe on municipal by-laws.In buying into a scheme you will acquire a SECTION (or Sections), and a share of the COMMON PROPERTY. These are collectively known as a UNIT. In practical terms, a Section is usually a flat or townhouse, but may also be a garage, domestic staff room, parking bay or external storeroom. Please note that in many Schemes, the garage and external rooms may NOT be sections, but may be part of the common property in which you may have EXCLUSIVE USE.The outside of the building is owned by the Body Corporate. In the interest of keeping uniformity, therefore, minor changes may be approved (in writing) by the trustees. This includes all external changes, i.e. aerials, satellite dishes, awnings, enclosures, changing of exterior colour schemes, etc. Any major structural changes must be done in accordance with government and municipal approval and before proceeding, with the Body Corporate’s approval, as any alterations may change the look of the property, or increase the insurance. No reasonable request may be refused. As regards common property, allocated for individuals sole use, such areas as indicated on the original plans or subsequently in writing, from the Body Corporate, may not be altered or reclaimed without the owners consent. 

4.     What does “Exclusive Use” mean?

Often this will be a garden or patio attached to a section, in which case you do not OWN the garden or patio, but you have EXCLUSIVE USE of those areas for as long as you are an owner in the scheme. A balcony attached to a flat is sometimes designated as an exclusive use area, although in most cases, the balcony forms part of the section. The 1986 Act allows an owner to sell the exclusive use of an area to any other owner in a scheme, but not to an outsider. The practical implication is that owners who have exclusive use of a garage, storeroom or parking bay which they do not require, can sell the exclusive area to another owner in the Scheme. This benefit does not apply to owners of units registered under the 1971 Act, as under that Act, exclusive use areas were allocated under the rules of the scheme, whereas under the 1986 Act they are registered at the Deeds Office. 

6.     What is the “Body Corporate”?

The Body Corporate is the collective name given to all the owners of Units in a Scheme. It comes into existence as soon as the developer of the Scheme transfers a Unit to a new owner. All registered owners of Units in a Scheme are members of the Body Corporate. The Body Corporate controls and runs the Scheme. Day-to-day administration of the Scheme is vested in TRUSTEES who are appointed by the Body Corporate. Major decisions regarding the Scheme are made by the Body Corporate, usually at the ANNUAL GENERAL MEETING (AGM), or at a SPECIAL GENERAL MEETING. At these meetings, matters, which affect the Scheme, are discussed, Budgets are approved, Rules can be changed and Trustees are appointed – often accompanied by lively discussions! Each member of a Body Corporate is entitled to vote at these meetings, providing that the member is not in arrears with levy payments or in serious breach of the Rules. Members in default can only vote in certain circumstances. An individual member’s voting power is governed by the member’s percentage ownership of the common property. This percentage is known as the PARTICIPATION QUOTA. 

6.     What is “Common Property”?

The Common Property is that part of a scheme which does not form part of any section. Driveways, gardens, swimming pools, corridors, lifts and entrance foyers are good examples of common property. As mentioned above, some parts of the common property are designated as Exclusive Use areas.

7.     Who controls the common property?

   

The common property is controlled by the BODY CORPORATE. There are no exceptions to this rule. This means that even though parts of the common property are designated exclusive use areas, these areas are still controlled by the body corporate and therefore subject to the rules of the scheme. These rules might prohibit “braaing” in an exclusive use garden or balcony, control the type of fence or wall erected around a garden, or prevent the installation of a plunge pool or spa bath without first obtaining the consent of the trustees. 

8.     Who are the Trustees?

The Trustees are usually owners in a Scheme who have been entrusted with the task of looking after the scheme on a day-to-day basis. Trustees are appointed by the Body Corporate. The minimum number of Trustees for a scheme is two. The Act does not specify the maximum number. Ideally, a trustee should possess skills or qualities which will be of benefit to the scheme. Accounting or legal knowledge, organisational abilities, knowledge of electrical or mechanical matters, the ability to type or bookkeeping skills are much in demand, and can save the Body Corporate a lot of time and trouble! It is permissible to appoint as trustee someone who does not own a unit in the scheme, although this is not common practice. At all times, the majority of trustees MUST be owners in the Scheme. Trustees work on a voluntary, unpaid basis, although a trustee who is NOT an owner in a scheme may receive payment for acting as a Trustee. At the first meeting after being appointed, the trustees elect a chairman who usually holds office until the next AGM.

9.     Who makes the rules?

At the inception of a Scheme, MANAGEMENT and CONDUCT RULES are established. These rules form Annexures 8 and 9 to section 35 of the 1986 Sectional Titles Act. As their names imply, the management rules control the running or management of the Scheme, while the conduct rules lay down guidelines for the conduct of owners and their guests or tenants. Where a Scheme was established under the 1971 Act, the Rules were made in accordance with the provisions of that Act. In Schemes where the Body Corporate did not amend the standard rules under the 1971 Act, those Rules were automatically replaced by the Management and Conduct Rules of the new Act. In cases where these rules were amended, these amendments still apply as long as they are not irreconcilable with the 1986 Act. An excellent and detailed discussion regarding Rules will be found in “The Sectional Title Handbook,” by Graham Paddock, published by Juta.

10.     Can the rules be changed?

Yes. The Body Corporate can change the Rules, providing that these changes are not against the spirit of the Sectional Titles Act. The procedure which must be followed before rules can be changed is clearly defined in the Act. Proposed changes must be put to the members of the Body Corporate at a General Meeting, at which members will be able to discuss the proposed changes before being asked to vote for or against them. Some changes require an UNANIMOUS RESOLUTION, while others require a SPECIAL RESOLUTION.

11.     What is “the Levy”?

The costs incurred in running a scheme have to be paid by the body corporate. These costs include:

Water and electricity used on the Common Property

Insurance premiums for the Common Property

Repairs and maintenance of the Common Property

Wages and salaries of the cleaners and other staff

Security

These costs are paid by individual owners in the form of a monthly levy, calculated in accordance with the participation quota for their unit. Some costs incurred in the upkeep of Exclusive Use areas can be recovered from the user of that area. In addition to the above, the body corporate is obliged to establish a fund for future maintenance and unexpected expenses. The size of this fund is not specified in the Act, but a wise body corporate will make sure that the fund is adequate for the size of the complex and present condition of the property. If the fund becomes excessively large, the Act does not allow any part of the excess to be refunded. However, the excess could be used to subsidise future levies or to improve the common property.

12.     How is the levy calculated?

At the inception of a Scheme and again before every AGM, the trustees have to prepare a budget for the following year. This budget is then presented to all members of the body corporate at the AGM. The body corporate can either accept the budget or can ask for changes to be made.

Once the budget has been accepted, the total annual cost is divided into a monthly amount. Each owner is then “levied” a monthly amount, which is his or her share of the common budget. The amount is calculated in accordance with the Participation Quota (PQ) of the owner unit. Larger Units have a higher PQ than smaller units and the amount paid by each owner will vary accordingly.

13.     Can the levy be changed other times?

Yes. In an emergency, the Trustees can impose a SPECIAL LEVY to cover expenses of an unforeseen nature. This could change with the 10 year maintenance plan introduced in October 2016.The trustees will be guided by the plan and expenses ought not to just come up unexpectedly.

14.     What are Managing Agents?

Managing and administering a Scheme, particularly a large Scheme, is complicated and time consuming. Occasionally, the Body Corporate and Trustees undertake the entire task. Unless the Body Corporate is unusually well endowed with specialised knowledge and talents, this is seldom successful. Most Bodies Corporate decide to appoint MANAGING AGENTS, usually a company or close corporation that specialises in this aspect of Sectional Title administration. The Managing Agents collect the monthly levies and all other moneys due by owners to the Body Corporate. They keep the books, recover unpaid debts, prepare the annual budgets, arrange for quotations for repairs and maintenance, send out notices and generally assist the Trustees with the numerous time consuming tasks that arise in administering a Scheme.

A good Managing Agent can save the Body Corporate a lot of time, trouble and expense.

15.     Enclosing of balconies

Q: What are the requirements for enclosing balconies in our building?

A: Acknowledgement: Property 24

After the infamous 3 Ps – pets, pests and parking – and exclusive use areas, balcony and patio enclosures appear to be the most troublesome subject in Sectional Title.
A balcony / patio, says ST expert Bob Gauld, can be one of many things:
– It can be part of the owner’s section. 
– It can be non-exclusive common property.
– It can be exclusive use of common property, granted and registered under section 27 of the 1986 Sectional Titles Act.
– It can be exclusive use of common property, granted under the rules after October 1997 as described in section 27A of the current Act
– It can be exclusive use of common property granted under the rules of the 1971 Act.
And, before an owner or a body corporate can even consider an application to enclose a balcony, the Sectional Title plan approved by the Surveyor General and the Rules filed with the Registrar of Deeds will need to be consulted to determine its status.
Gauld notes that the first two categories of balcony / patio are more usual, but that all categories are treated differently and that even the factors common to all of them preclude enclosure authorisation solely by the trustees.
The common factors include: 
– The fact that the outer part of the outer walls of the balcony will be beyond the median line of the wall and thus defined in section 5(4) of the Act as common property.
– The possibility that the enclosure of the balcony is a change of use and subject to section 44(1)(g) of the Act.
– Repair and maintenance issues that must be addressed. There are many cases on record of enclosures interfering with the flow of rainwater, sometimes with serious consequences for other owners.
– Consideration about how enclosures will affect the harmonious appearance of the scheme.

A balcony that forms part of a section is the least difficult to handle as it does not require the section to be extended. However, many balconies that are included in the area of the section are not included in the ‘bulk’ or ‘FAR’ (floor to area ratio) of the building. In such cases and in spite of the Sectional Title requirements having been met, the local authority may decline consent.
If the enclosure changes the use to which the balcony is put, the written consent of all the other owners will be required. If a new room, such as a bedroom, is created, it will be subject to local authority planning requirements regarding room size, ceiling heights and ventilation. 
In addition to these local authority considerations, the enclosure of a balcony / patio that comprise part of the common property, either with or without exclusive use, will almost certainly be seen as an extension of the section and subject to the provisions of Section 24 of the Act. 
As to harmonious appearance. Gauld points out that management rule 68(1) provides that an owner ‘shall not do anything to his section or exclusive use area which is likely to prejudice the harmonious appearance of the building’.
’But while this is easy to say, it is very hard to interpret. Is something inharmonious aesthetically displeasing, or is it just different? If 19 front doors are painted in gaudy, garish stripes and one door is natural wood, which is inharmonious? Owners can, therefore, expect some inharmonious debate about any proposed enclosures!’

16.     Harmonious Appearance

Q: How does our body corporate decide what is harmonious in appearance and what is not when giving permission for alterations and improvements?

A: Acknowledgement: Property 24

Most residential sectional schemes consist of sections built to a higher density than is usually found in freehold areas, and need the visual control that is usually achieved by designing around a particular style and colour theme.
Carefully followed, says Sectional Title expert Bob Gauld, this avoids the “little boxes” impression, creating instead a harmonious and pleasing appearance. It is in the interests of such visual harmony that management rule 68(1)(iv) was written, and although it does not specifically refer to common property, the intention is clear:

68(1)(iv) ‘An owner shall not do anything to his section or exclusive use area which is likely to prejudice the harmonious appearance of the building’.

How do we define ‘harmonious appearance’? Some people try to equate harmony with aesthetics and often go to great trouble and expense to prove their point.
This is, however, not what is intended by the rule. Says Gauld: “If we look at a scheme of 10 sections built in a single row, nine of which have bright red and purple front doors and one section has a white door, the white door would be considered inharmonious, even though aesthetically it may be more pleasing.”
And the harmonious appearance rule is absolute. It does not even allow the owners by unanimous resolution to sanction anything inharmonious. 
Among the most common violations of this rule are gates, awnings and shade-cloth that do not conform to patterns or colours approved by the body corporate. Other examples are windows that have been replaced with sliding doors or steel garage doors that have been replaced by timber doors.
A very common problem affecting many coastal schemes involves individual owners replacing timber window frames with aluminium. Not only is this a violation of the harmonious appearance rule, but it is compounded by the fact that in most schemes the window frames are part of the common property and should not be replaced by section owners.
”These are obvious examples – others are less obvious,” says Gauld. “Consider a high-rise block of flats in which every alternate storey has all the balconies enclosed, the remaining storeys having open balconies. If all the enclosures have been done in the same style, the effect is harmonious. If an owner applied to enclose a balcony on an open-balcony floor this would be considered inharmonious.”
Gauld notes that developers who anticipate the needs of the future body corporate can help avoid many problems. “For example, owners of brand new units will not wait several weeks or even months for the future body corporate to decide on style and colour before installing security gates outside their front doors. The likely result is that the visual harmony of the scheme will be compromised, unless the developer had the foresight to amend the rules of the scheme, before establishment, to specify colours and patterns of security gates.”

17.  Levies – withholding payment

Q: The Trustees have not replied to me on many issues that I am concerned about in the running of the complex, for example: maintenance of the building, financial accounts and books of record and certain decisions that I do not believe they are entitled to make. Can I stop paying my levies in protest?

A: Definitely not!  You are not entitled in law to withhold your levies under  any circumstances.  If you have a dispute with the Body Corporate, represented by the Trustees, you have legal remedies, being to approach a court, or invoke Regulation 71 of the Sectional Titles Act 95 of 1986, which is the Arbitration provision.

18.  Meetings

Q: I believe that a meeting must be called at our Body Corporate urgently to discuss certain issues, but only trustees can call meetings. They refuse to do so – what can I do?

A: If you have the support of other owners who make up 25% of the total of the participation quotas of the sections, you may, in writing, request that the trustees convene a special meeting.  If the trustees fail to call a meeting within fourteen days, those owners may then call the meeting.

19.  Parking

Q: We have a huge shortage of parking in our complex and we currently operate on a first come first serve basis when it comes to the extra bays. How can we allocate these bays on a permanent basis and how can we create additional parking on the common property? We do have some open areas.

A: Acknowledgement: Property 24

Can there ever be enough parking in a sectional scheme? Probably not, but while creating extra parking facilities is fairly simple; allocating them to individual owners is far more complicated. 
In most schemes, the creation of extra parking can be achieved by demarcating bays on existing driveways or other paved areas , or making a ‘non-luxurious’ improvement to common property. That means that before implementing the proposed improvement, the trustees will have follow the provisions of prescribed management rule 33 and consult the members of the body corporate.
However, says sectional title expert Bob Gauld, if the proposed improvement will require an area of garden to be paved and the removal of trees, the likelihood of objections from members will increase, as will the temperature at the special general meeting that will follow! 
’And if the proposal includes the installation of shade netting, the erection of carports or even the construction of full garages, the improvement may be seen as a luxurious improvement, requiring a unanimous resolution of the members of the body corporate.’
Gauld also notes that, once created, the new bays will be part of the common property and will be available for general use. ‘As they will not be designated as exclusive use areas, their creation will not prevent a free-for-all scramble for the better or bigger bays and will not guarantee the availability of an extra bay for all residents at all times.’
Consequently, the body corporate may want to allocate the new bays to owners as Exclusive Use Areas (EUA’s) – and it may do so by means of a 100 percent resolution of its members. EUA’s can be created either under the rules of the scheme or registered as real rights.
However, bodies corporate that choose to create the new EUA’s under the rules as prescribed by section 27A of the Sectional Titles Act, should appoint a specialist attorney to draft the rule. The rule should include a convertibility option that will grant owners a right to convert the exclusive use to a registered real right under section 27 of the Act.
Bodies corporate choosing to register the EUA’s will also have to appoint a land surveyor to prepare a plan for submission to the Surveyor General and a conveyancer to register it with the Registrar of Deeds.
Alternatively, and a good option if the body corporate cannot get the appropriate resolution to create EUA’s, the bays may be leased to members. Providing that the lease agreement is for a period of less than 10 years, an ordinary resolution of the members will usually be sufficient. Section 17(1) read in conjunction with the definitions in section 1 of the Sectional Titles Act states that leases of 10 years or more require a unanimous resolution.
Any agreement to rent bays must contain a clause that the lease will terminate when the lessee ceases to be a member of the body corporate, thus releasing the bay for reallocation. A prudent body corporate will employ a specialised property attorney to draft a suitable lease document.
In most sectional schemes, parking is a very contentious issue, and trustees must be guided by the wishes of the body corporate members before renting spare bays or any part of the common property.
They should also exercise extreme caution before having any vehicle (or trailer, boat or caravan) removed or towed from the common property, and certainly should not do so without first having issued several written warnings.
At the same time, though, residents of sectional schemes need to be mindful of others’ convenience, as well as prescribed conduct rule 3: 
’3(1) No owner or occupier shall park or stand any vehicle upon the common property, or permit or allow any vehicle to be parked or stood upon the common property, without the consent of the trustees in writing.
(2) The trustees may cause to be removed or towed away, at the risk and expense of the owner of the vehicle, any vehicle parked, standing or abandoned on the common property without the trustees’ consent.’

20.  Pets

Q: The following rule regarding pets have been approved at our last AGM: Any person who finds that a pet in the complex is a nuisance to him/her can complain. If the owner/tenant receives 3 such written warnings then owner/tenant will be requested to remove the pet. Please advise on what I can do as I have received a first warning for my wandering cat.

A: The prescribed rules state that no pets are allowed unless written the trustees grant permission. When granting permission any reasonable condition may be part of the permission. It goes on to say that if any of the conditions are breached, permission will be withdrawn

Cats are wanderers particularly if they have not been neutered. You must make an arrangement to keep your cat confined to your unit as it is obviously causing a nuisance to other residents

The trustees may not refuse permission to keep pets but they should attach conditions to their consent. I am afraid that they are fully within their rights to respond to complaints from other residents 

21.  Spa baths

Q: I would love to install a spa bath in my section. I have been informed that I can do this as it is within my section, and does not affect common property. Is this true?

A: Be really careful with this – you are not entitled to do anything in your section which will cause a nuisance to any other owner.  A spa bath has noise implications, and in the past, an arbitrator has ordered that the mechanism for the bath be removed, as it created an unreasonable amount of noise to the unit directly underneath the unit where the bath was installed.

22.  Special levies

Q: The trustees have just gone ahead and decided that the building is being painted. A special levy has been raised – I cannot afford it – can they make that decision alone?

A: The trustees have delegated powers in terms of the Sectional Titles Act, and have the power to decide on issues relating to the maintenance of the building.  In fact this is a statutory obligation, and if they fail to ensure that the building is maintained, they may face an arbitration hearing.  Obviously the decision which they take must be reasonable i.e.: they should have obtained quotes properly, etc.  They are entitled to raise a special levy.

23.  Tenants

Q: We have a major problem with tenants in our complex. Many tenants simply do as they please with absolutely no regard to the rules of the complex. Can we evict them?

A: The answer is no.  There is no legal relationship between tenants and the Body Corporate.  The owner is directly responsible to ensure that his lessee complies with the rules, and the Body Corporate has recourse against the owner.  In other words, if the matter went to arbitration, the owner would be the Respondent in the matter.  The Body Corporate should place pressure on the owner at all times to in turn reprimand a tenant who is not adhering to the provisions of the Sectional Titles Act.

24.  Trustee

Q: I am a trustee, and I am feeling increasingly vulnerable about my position. We have owners who threaten to take legal action against us personally all the time. Where do we stand as trustees?

A: The law recognises that the role of a trustee is not an easy one –there is no remuneration involved, and the job is often carried out over and above other daily commitments.  The trustees are therefore indemnified against claims  unless the trustee acted dishonestly, or  grossly negligently.  The definition of gross negligence could be the subject of a small book, save to say that the trustees must really have acted extremely negligently.

Q: Our Managing Agent says that it is legal for him to be a Trustee. This seems strange – is he correct?

: An amendment to Regulation 5 of the Sectional Titles Act now allows a Managing Agent or an employee of the Managing Agent to be a trustee,  as long as he is an owner of a unit in the building.  This amendment is open to criticism as there may be a conflict of interest where a Managing Agent or his employee is wearing two hats.