Thinking Inside the Box

A Paddocks Sectional Title Lifestyle Blog

Leaking Balconies in Sectional Title – Who is Responsible?

leaking balcony sectional titleby Jennifer Paddock

When most people look at the image above their first thought would be ‘Wow!’.

Having been involved in sectional title for a while my first thought is ‘Potential leak disaster!!’.

With that in mind I want to share an article I wrote about leaking balconies in sectional title schemes. This is a complicated issue because not all balconies are created equal. Some balconies form part of an owner’s section, some are unregulated common property and some are exclusive use areas. Each different type of balcony has different maintenance and repair responsibilities attached to it.

So today’s post is more ‘legal’ than usual. But if you are dealing with a leaking balcony problem, bare with me and the information below should definitely assist you:

It seems like the situation should be simple… if your section suffers damage as a result of the failure of the owner above to maintain his waterproofing, he should ensure that the balcony is properly waterproofed and pay for the costs of repairing the damage to your section, right? Well, unfortunately it’s not that easy as balconies are not all created equal. Let’s talk you through the three options:

1. The balconies form part of the owners’ sections

“Here, there is no common property between your section and the one above and therefore the body corporate is not obliged to involve itself in dealing with any complaints relating to the leaking balcony or initiate and oversee any repairs in this regard.”

Because of the ‘median line’ concept that applies to sectional boundaries, each owner owns his section to the midpoint of its floors, walls and ceilings. The sectional plan for a scheme shows each section and you can tell whether the balcony is or isn’t included in the section by checking what areas are enclosed within the solid line that delineates the boundary of the section. In the situation where the sectional plan shows that the balconies form part of the sections, which can happen even where there are open balconies, the balcony floors are part of the sections. So the higher owner will own and be responsible for his balcony floor, to the midpoint of that floor, while the underside of the balcony (in this case your ceiling) forms part of your section and is your responsibility. Here, there is no common property between your section and the one above and therefore the body corporate is not obliged to involve itself in dealing with any complaints relating to the leaking balcony or initiate and oversee any repairs in this regard.

Each owner is obliged in terms of section 44(1)(c) of the Sectional Titles Act 95 of 1986 (“the Act”) to repair and maintain his section in a state of good repair. Therefore if the waterproofing membrane of the higher owner’s balcony has failed, that owner is obliged to repair it. Similarly, if your ceiling is damp and damaged as a result of the failed waterproofing, it is your responsibility as owner of the lower section to repair it. The law of delict allows a person who has suffered loss as a direct result of another’s acts or omissions to claim compensation from that person. In this situation, if you could prove that your ceiling was damp as a direct result of the above owner’s failure to adequately repair and maintain the waterproofing membrane forming part of his section, you would be entitled to reclaim the reasonable costs of repairing the damp in your section from him. Clearly it would make sense to first compel the higher owner to repair their balcony floor so that the repairs to your balcony ceiling will not be ruined by further water penetration.

2. The balconies are common property subject to exclusive use rights

“The body corporate must carry out the repairs to the balcony and then recover the costs of doing so from the owner entitled to exclusive use of the balcony.”

The balcony above yours is, according to the sectional plan, part of the common property but the owner of the flat that gives access to the balcony has exclusive use rights to the balcony. In this situation one has to distinguish between the operational and financial responsibility for maintaining and repairing the balcony. The body corporate is responsible for maintaining and repairing all of the common property in terms of section 37(1)(j) of the Act, but the owner entitled to exclusive use of an area of common property is responsible to pay the maintenance and repair costs associated with that area in terms of section 37(1)(b).

So if the higher balcony in this situation is leaking into your exclusive use balcony or your section and causing damp problems for you, you can approach the body corporate as the party responsible to repair and maintain it. The body corporate must carry out the repairs to the balcony and then recover the costs of doing so from the owner entitled to exclusive use of the balcony.  You could claim the costs of repairing the damp in your section from the body corporate and insist that it carries out the repairs to the balcony ceiling in your exclusive use area.

But in this situation you should look at the scheme’s rules to check whether they have been amended to provide that the owner entitled to exclusive use will actually carry out the repairs and maintenance of the balcony. If this is the case, you should approach the owner above directly and ask him to see to the repairs. If he does not comply you can request that the body corporate use its power under prescribed management rule 70 to send the owner a letter giving him 30 days to effect the repairs, failing which the body corporate can effect the repairs and reclaim the reasonable costs of doing so from the owner.

3. The balconies are unregulated common property

“These balconies should be treated like any other area of common property and be maintained and repaired by the body corporate…”

In some schemes the balconies, although only used by the residents of the sections attached to them, form part of the common property and are not subject to any exclusive use rights whatsoever. These balconies should be treated like any other area of common property and be maintained and repaired by the body corporate which must also fund the maintenance and repairs of these balconies from the levy fund.

If a balcony forming part of the unregulated common property is leaking into your section or balcony or causes leaks or damp you should approach the body corporate in this regard.

I would recommend that in a situation like this you suggest that the body corporate should legally “connect” the balconies to their adjacent sections by conferring rule-based exclusive use rights on the owners from time to time of the sections adjacent to the balconies. The reason for this recommendation is to make sure that the people who actually use the balconies will be responsible for the costs of their maintenance and repair. Such rule-based exclusive use rights can be conferred in terms of the provisions of section 27A of the Act which requires the body corporate to make appropriate rules, either management rules by unanimous resolution or conduct rules by special resolution. The rules must have a layout plan to scale attached to them clearly indicating the size of the area and the purpose for which it is to be used. These rules must be filed in the scheme’s file held at the Deeds Registry before they become enforceable.

Have you battled with a leaking balcony issue? Let us know about it by commenting below.

Image source: http://pinterest.com/pin/8866530489124161/

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21 comments on “Leaking Balconies in Sectional Title – Who is Responsible?

  1. Petre
    August 13, 2017

    Hi, i hope you can give us some advise. we are the owners of the upper story balcony. we have been living in the flat for 2 years. the owner below us braai room has to be repaired (whole other story) and they have already started breaking down the walls and has all of a sudden noticed that our balcony is “leaking” for two years nobody has “noticed”, but now that they have already started repairs there is an issue all of a sudden. what i am wondering is how do we know that it is not the knocking off the walls and start of repairs that has caused the balcony to start leaking as they have already removed the part of the braai room ceiling that connect with our balcony.
    how do we approach this?

    • Paddocks
      September 13, 2017

      Dear Petre,

      Thank you for your comment. We are more than happy to help, however we do not give free opinions / advice. Please email us on consulting@paddocks.co.za with regards to your matter, and we can provide you with a no-obligation quote, so that we can assist you.

      Kind regards,
      Paddocks

  2. roffsolutions
    July 25, 2017

    This article is very descriptive. Thanks for the wonderful share.

  3. Ann Franke
    May 2, 2017

    Hi

    I hope you can help. The balcony above our balcony has two problems. The balcony is covered in ashfelt. First problem we have had water ingress from an area above our lintel. This has been repaired and we are waiting to see if this problem has been resolved. Second problem, we have water coming down in others areas across the balcony. We believe the ashfelt to be porous. It needs sealing. Our concern we have rust patches showing through. The balconies are the responsibility of the property management, not the owner. However hard we try, they will not seal this ashfelt. The problem was raised with the managing agents by our neighbour above 9 months ago. Do we have any rights. Even on a sunny day, you can’t sit out as the water drips down.

    • Paddocks
      May 17, 2017

      Dear Ann,

      Thank you for your comment. We are more than happy to help, however we do not give free opinions / advice. Please email us on consulting@paddocks.co.za with regards to your matter, and we can provide you with a no-obligation quote, so that we can assist you.

      Kind regards,
      Paddocks

  4. daniela leigh
    June 9, 2015

    stunning site. I am a trustee in a complex, and each unit has its own balconies although some walls , garages are adjacent. We are doing major repair and waterproofing work, which will take over a year, and the work will be guarateed.owners of balconies have to pay for the waterproofing of their balconies before the painting for the block can be undertaken in six months time (after the rains) this waterproofing is very technical, as the block has experienced major problems and deterioration int he last two years. One or two of the owners are now refusing to waterproof their balconies , although especially in one of them a bad leak was found in one corner. can the body corporate enforce this owner to do the work, or is she is just entitled to fix the leak. Most of the owners of balconies have paid their part to have the balconies waterproofed , but the bc is now at loss on what approach to take with her. The paining on her unit specifially will not be guaranteed , as the rest of the block, and if the waterproofing or the leak is not properly fixed, the damage could seep with time to other common areas… Help pls..

    • paddocks
      June 22, 2015

      Hi Daniela, thanks for your question. We answer one question a day on our Facebook page for free. Please Like our Page on FB and re-post your question on our wall. One of our consultants should answer you within a few days. Thank you!

  5. Edgar Stafford
    November 3, 2014

    I also have a problem with a leaking balcony that leaks into my unit. The body corporate assured me it is common property and they will have it repaired. It is 5 months later and all I hear is that they are getting quotes. How can I force them or can I redirect my levy and have the repairs done?

  6. Norma Colli
    September 4, 2014

    The balcony of my flat is the roof of a bigger flat under mine.. My balcony has leaked water and damp to the flat under it in the extreme downpour we had recently. Who must pay.

    .

  7. Lynne Kirkwood
    June 4, 2014

    Question:
    I own a sectional title flat and the Body Corporate water tanks on the roof overflowed (x3) and water has badly damaged my flat below.
    Should the Managing agent/body corporate/trustees be dealing with these repairs, or is it me as owner responsible for getting quotes in and submitting to the insurers?

    • paddocks
      June 5, 2014

      Hi Lynne, we answer one question a day on our Paddocks FaceBook page so if you go onto FaceBook, search for Paddocks, Like our page and ask your question on our FaceBook wall we will answer you there – that way all our other fans benefit from the answer as well. Thanks so much 🙂

  8. Kim-Anh Huynh
    April 12, 2014

    Hi I own a double storey top floor apartment with an upstairs balcony that is above the living room below. When I moved in 8 months ago water was coming down into the ceiling below. Body corp sent out plumbers who used silicone to seal around the balcony. This was of no use and it got worse. I notified the body corp and they sent the plumbers out again, this time it became my expense. The weather warmed up and surprisingly no more problems until now. With the rain again water has leaked through the ceiling and down the wall affecting areas around power sockets and further more damaged the floorboards. Black mould is appearing. I have notified the body corp again but they referred the same building plumbers to me. It’s a grey area of who should be responsible. Ultimately someone has to pay to rectify the problem. From closer examination of the damage, it seems as though this area had previously been repaired before by the previous owner, so problem was never resolved to begin with, just cosmetically fixed with a lick of paint. I just don’t know what the best course of action is? How do I make a claim through insurance? Report it to my insurers then get someone out?

  9. paddocks
    March 10, 2014

    Here are some sites that could be useful for you:
    https://www.vcat.vic.gov.au/
    http://www.vic.stratacommunity.org.au/
    Good luck.

  10. Michael Modi
    March 10, 2014

    i’m in victoria

  11. Michael Modi
    March 10, 2014

    Hi, water from air conditioning unit/rain etc. is leaking through our balcony. It’s ruined the tiles etc. The water leakage is obviously affecting the ceiling of the balcony downstairs and they’ve contacted Body Corp. A plumber came to inspect & told me it should be Body Corps responsibility but Body Corp insists it is mine. Can you please clarify this for me. This is the reply of Body Corp:

    “The plan of subdivision that I have in the office clearly shows that the balcony is part of your property and owned by you, therefore you as the unit owner are responsible for the maintenance of this area. As stated the Plan Of Subdivision clearly shows the boundary of the unit as being inclusive of the balcony and it is therefore not considered common property or a common service.”

    I have asked for a copy of the sction(s) of the plan of subdivision. I live in Australia, i’m not sure you can even help since i don’t know what country this website is.

    • paddocks
      March 10, 2014

      Hi Michael, thanks for your comment. This blog relates to South African sectional title law which is based on the original NSW strata title legislation in Australia but the NSW legislation has since changed a lot. I did live and work in Victoria for a few years but would not be comfortable giving advice based on the Aussie legislation as I have been out of it for a while now. What state are you in? In Aus you have consumer tribunals such as VCAT that provide a wealth of information on strata titles. There is also a website called “Lookup Strata” (http://www.lookupstrata.com.au/) which has a discussion forum where I believe you could post a question. Hope that helps 🙂

  12. Geoff Legward
    January 17, 2014

    Hi Jenny,
    We are an independent consultancy called Property Diagnostics, which deals specifically with leaks, repairs and BC problems. We investigate, flood test, and specify remedial works and this topic is something we see everyday. We have on numerous occasions determined that a large scale cause of failures is the windows, Either the mitres, rubber gaskets or wall to frame seals fail and allow large amounts of water into the frames. Big problem on sliding doors.!!!!. This has on many occasions penetrated into the cavities/slab and has affected the units directly below. Does the same rule apply ? In some cases these windows are not above balconies and are completely separate.

  13. Gavin
    September 23, 2013

    Interesting, question regarding balconies. A duplex with a double garage and above the garage is an open plan balcony. The developer has registered the FAR which includes the open plan balcony. When working out the pq can the open plan balcony be exclude from the calculation as it is not deemed habitable ?

    • paddocks
      September 25, 2013

      Hi Gavin. Thanks for your comment. You will need to look at the scheme’s sectional plan to see if the balcony is in fact included in the boundaries of the section. If it is, then the floor area of the balcony is counted for the purposes of calculating that section’s PQ regardless of the fact that the balcony is not deemed habitable. If the floor area of the balcony is not included within the boundaries of the section then it does not count for the purposes of the PQ. Hope that helps!

  14. Yolande Cowley
    August 5, 2013

    I am a managing agent to a block of flats. In this block, the balconies form part of the units. However, under the balconies are exclusive use area parking garages.. the balconies waterproofing has perished. together with this it appears that the balconies are pulling away from the flats leaving a large crack between the units’ doors and the balconies. This is causing water to seep into the crack and run into the concrete. The concrete on the slab is now rotting and causing a problem in the parking garages.

    Our attorney says that the cost of repairs would be for the balcony owners and the EUA parking garage owners.

    Is this correct even if the balconies collapse and would cause a major structural problem to the flats above the first floor where the problem is arising?

    • paddocks
      August 5, 2013

      Hi Yolande, the situation you describe is complicated and I am not able to give you formal legal advice through comments on this blog post. I’ve set out the general rules in the post above – the balconies that form part of the sections are owned to the midpoint of the balcony floors and the owners of those sections are responsible for them up to that point. The EUA garages must technically be repaired and maintained by the BC but the money associated with those repairs must be recovered from the owners entitled to the EU rights. However, if the owners entitled to the EU of the garages can show that the damage to their garages is as a direct result of the section owners’ failure to repair and maintain their balconies, then the law of delict provides that they will be able to claim the costs associated with repairing their garages from the owners of the sections above. Once again, I’d like to emphasize that this is not formal legal advice – if you require an opinion where I would look at all the relevant documents and give you a formal opinion then please go to: http://www.paddocks.co.za/support/private-consulting for more information on our private consulting service.

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