Distinguishing between Luxurious and Non-Luxurious Improvements to Common Property
By Jennifer Paddock
In a recent post I dealt with how luxurious and non-luxurious improvements to the common property need to be authorized. In this post I look at how to distinguish between luxurious and non-luxurious improvements.
Why is the distinction important? Because luxurious improvements to common property require much higher consent levels than non-luxurious improvements, which can potentially be effected without any active owner consent.
Prescribed Management Rule 33, which deals with these improvements, provides no guidelines whatsoever as to what type of improvement is to be considered a luxury and what is not.
Prof. Graham Paddock in his Sectional Title Survival Manual and Prof. CG van der Merwe in his work Sectional Titles, Share Block and Time-Sharing, refer to a well-known distinction in the South African law of property which regards any improvement which is necessary and useful as non-luxurious, and any improvement which is desirable but not necessary, as luxurious.
So here is the question to ask when deciding whether a suggested improvement to the common property is non-luxurious or luxurious in nature:
Of course the answer to whether the improvement is necessary and useful will depend on the persons answering the question. Take the installation of a lift for example. The sectional owners of a 5 storey building in Clifton may believe that a lift is necessary and useful and not merely desirable, whilst the sectional owners of a 5 storey building in a less affluent area may agree that it is merely desirable and not necessary. Subjectivity and value judgments definitely play a part in determining the answer.
If the trustees, who usually initiate any improvement processes, feel that there will be dissention amongst owners as to whether the improvement they have in mind will be luxurious or non-luxurious in nature we recommend that they call a general meeting at which to ask for a direction from the body corporate as to how to classify the improvement, thereby instructing them which process and authorisations are required. A direction can be given by a simple majority of owners at a properly convened general meeting.
I hope that information is useful.
What are your thoughts on distinguishing between luxurious and non-luxurious improvements? Do you have any anecdotes to share with us? Please do so by commenting below…
Thinking Inside the Box 
would putting in a trampoline be considered a luxury improvement – we a block with 50 units and about 10 want a trampoline as they have kids – the rest are probably not interested and it would ruin the garden. What percentage of the body corporate would need to want a trampoline of it to be passed ? 100% or just a majority/
Hi Natascha,
Thank you for your comment. 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
Hi.
Would the installation of Fibre for Internet/Voice services be considered luxurious? The area we live in has poor service from Telkom, (they are currently upgrading to fibre to their customers) and the cost of running a cellular service is high in comparison. The fibre install would be funded by the fibre company (not Telkom), and there would be no cost to the Body Corporate.
Thank you in advance.
Rephrase .. The BC’s boundry fence is wooden and runs the entire length of all units on one side. This fence is a privacy fence between Complex and private homes that back up to it. Can the trustees replace this wooden fence with Vibrecrete or is this considered a luxurious improvement? Cost difference between the two is huge! It’s not as if this privacy fence is facing a road where public access is available.
If fence boundary between neighbors at the back of you (private residences) is wood can it be replaced with vibrecrete .. or is this a luxurious improvement? Entire wooden privacy fence back of all complexes belongs to BC ???
The decision line drawn is great plus the mention of the relativity of an improvement such as the lift story.
Beuatifying common propety gardens and verges is another quite contentious matter in this regard – the more upmarket the complex thev more owners want it to look the part. As we all know, proper landscaping and even just good plants, shrubs and trees are becoming horribly expensive and it is often difficult to judge when it is approaching “luxurious” status.
To this end it is a good idea to make specific provision for this in the annual budget and to discuss this and get it approved at the AGM and we think this is in line with the suggestion by Jennifer to manage possible dissent.
Can maintenance, for example, Painting if roofs(tiles), be classified as luxurious or not – specifically to cover and clean cement roof tiles with marks by weather and alga close to the sea.
How does this affect a person who has had permission to erect an awning but in fact that ‘awning’ is a much bigger than the normal sized awning. If we had a general meeting about this matter. there is one owner in particular who has the majority of proxies and therefore can sway any decision his way. The majority of those proxies are non resident owners who haven’t been to their units for many years. The proxy rule in my opinion is extremely unfair and a while ago I was led to believe that this ruling would be changing but as yet hasn’t happened.
Some where I read that there is a limit to how many proxies a member can hold. I think it’s one. This make sense as the ruling appears to avoid situations of exactly what you are experiencing. I stand to correction, but I also think that the only time more than one proxy can be held by a person is in the case of a chairman at meetings. Example, if a member gives his proxy to some and that proxy for what ever reason is not able to attend, then that proxy automatically falls to the chairman. Hence, management or his agents (unless a member) should not be allowed to chair a meeting. Attend yes, but not chair! Hope this makes sense to you. Suggest you do some research to confirm. KR
A really good, to the point, synopsis – thank you and well done.
Thank you Greer, that’s a great compliment coming from you 🙂