Thinking Inside the Box

A Paddocks Sectional Title Lifestyle Blog

10 Questions Trustees Should Ask Before Approving Owner Changes to Common Property

owner alteration to common property

By Jennifer Paddock

In this post I recommend 10 questions the trustees should consider when an owner is seeking permission to permanently alter the common property.

If an owner indicates that he wants to make a material change to the common property the trustees should ask the owner to make his application in writing explaining and showing with pictures if necessary, what change he would like to make.

Once the written proposal/application is received the trustees should consider the following:

  1. Is the area of common property that the owner wants to alter subject to exclusive use rights in his favour [if so have a look at PMR 68(1)(vi) and Carryn’s blog post on improving exclusive use areas here] or is it simply ordinary common property not subject to any special rights?
  2. Will the alteration have any negative effect on other owners and tenants in the scheme?
  3. Will the alteration negatively affect the harmonious appearance of the building? [See PMR 68(1)(iv)]
  4. Will the alteration reduce the value of other units in the scheme? 
  5. If we give one owner this permission, others may want to do the same or something similar. What would the result be if all owners did this?
  6. What about maintenance and repair of the altered area – who will be responsible? [The body corporate will be responsible for maintenance and repair of the area because it is common property unless special rules have been made or strict conditions imposed to the contrary]
  7. Would any special conditions need to be attached to the consent to formalize the maintenance and repair responsibilities? [It’s a good idea to attach conditions if the trustees want the owner and any subsequent successors-in-title to be responsible]
  8. Would it be better to create and give the owner exclusive use rights to this particular area and then allow him to improve it? This way he is financially responsible for the area from the start. [See PMR 68(1)(vi) and section 27A of the Sectional Titles Act]
  9. Do any additional body corporate rules need to be passed to formalize any necessary arrangements relating to this area? [If so, look at section 35 of the Act and my blog post on amending scheme rules here]
  10. Do we need a lawyer to draft/check the drafting of any conditions or proposed rules to ensure they have the desired effect and are enforceable?

What have I missed? If you have any other questions you believe are useful for the trustees to ask when considering owner applications to alter the common property please post them in the comments below! Any other suggestions or comments are also welcome.

Image source: http://www.getappcase.com

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11 comments on “10 Questions Trustees Should Ask Before Approving Owner Changes to Common Property

  1. Gayle
    March 11, 2015

    Do you need municipal plans for patio awnings and car port awnings in a domestic complex

  2. kevin
    December 16, 2014

    I have a problem where they added rooms on common property as well and I dont know who to report it to as there is no official eua

  3. Jan
    December 12, 2014

    reply to Barry Le Roux:
    You need to obtain the conduct and management rules and the complex plan from the deeds office. then ask the managing agent for the minutes of the last 5 years trustees’ meetings and the minutes of the AGM’s. Also ask the MA for correspondence about undercover parking.

    Obtain date of the next trustee meeting and make sure you attend.

    Print notices about car ports and leave under doors of all other owners. State how much shade cloth will cost and give companies names who have given you quotes. suggest they formally ask trustees and MA for permission to erect car ports. Ask MA for contact details of all other owners and send them the information about car ports. the MA must provide you with the details as this is stipulated under the act, specifically state that you are trying to obtain a large discount if the shade cloth company could do more than 5 / more than 10 at the same time.

    But what do your rules say, are you allowed to store goods in garage? or is garage only for cars?

  4. Brand
    December 12, 2014

    The tenants have a contracts with the landlords ( owners of the apartments). Under the Rental Act, the landlord – or BC of the complex – may not make changes which negatively affect the tenants.
    So the BC cannot make a decision of allocating an EUA garden to one pwerson and the other next door owner (including his tenants) then lose the enjoyment of the large(r) common property garden.

    So the alteration would have a negative effect on other owners and tenants in the scheme.

    The question are: Will the alteration reduce the value of other units in the scheme?
    If we give one owner this permission, others may want to do the same or something similar. What would the result be if all owners did this?

    Off course it will affect the value of the apartment which did NOT get a garden. if the apartment is put on the market, prospective owners will note that there is no exclusive use are of garden for them if they buy.

  5. davenerhatidavid
    August 5, 2014

    Obtain an Engineers certificate stating that the existing and future structure will be safe for all owners and what to expect regarding future maintenance costs.

  6. Barry Le Roux
    August 3, 2014

    Dear Jennifer
    I stay in complex in Birchleigh, Kempton Park. I’ve asked my trustees for permission to erect a shade awning in front of my garage which is actually part of the common area. I did this twice, but was refused on both occasions. There is a carport already in the common area at another unit. When I mentioned this I was told by the owner, who was chairman at the time, that he got special permission to erect it. He no longer lives in the unit, but still owns it. The tenants who rents the unit obviously enjoy the use of the carport for their vehicles which is normal because they don’t know about the story behind it. I would just like to know if I have a foot to stand on. Our Trustees are very slack and there is a lot of rules that are just not enforced. Thanks
    Barry Le Roux

  7. kuberkareleliyah
    July 31, 2014

    Question: Is this agreement for the benefit for all the owners or solely the applicant?
    Can you also tell us whether the interest rate on arrears levies (Prof Grahams article) needs a Special or a general resolution at an AGM?
    Are there any restrictions of the possession of units in percentage of the total by a single owner, prohibiting him to obtain the majority and to rule the complex? If not can this not defeat the purpose of Sectional Titles Act?
    Finally, do you have any information about the appointment of an Ombudsman for Sectional Titles ?

  8. Bob Gagel
    July 31, 2014

    If an owner is given permission to erect a carport in front of his garage should this not be included in the PQ if the Body Corporate takes on the responsibility of the maintenance?ie pay a higher levy?

  9. M Hobbs
    July 31, 2014

    I have been involved in a battle for 5 years to get the Tshwane Municipality to enforce the law regarding building without plans on the Common Property – the most recent court case (there have been two) being withdrawn as there is “not a reasonable chance of success” in the outcome of the case. The badly constructed extensions were erected without approved Municipal plans (without any plans) and without any consent or consultation from me, the co-owner. In fact the building runs cheek by jowl with the entrance path to my unit and is decidedly unattractive & used by the owner for storing his rubbish bin and a trailer covered in a dilapidated grey shroud. The buildings remain illegal. The process of adding extensions has still not been followed by the other co-owner. There are only 2 co-owners – so we are the body corporate. I refuse to sign a letter saying that I will retrospectively legitimise the extensions and go from 50% participation to 39% (giving him the greater voting rights). The Rules would have to be changed to prevent him from controlling the property. There is also the question of the square meter coverage allowed for building on a property – if one owner builds & exceeds the 50% allowed as his share the other owner my not be allowed to add extensions to his liking because the coverage may already have been exceeded. The Municipality does not warn about this possibility. Should I consent to this badly built extension I could be held responsible for its maintenance, because it is on common property. AND STILL NO OMBUSDSMAN TO PROVIDE A SOLUTION. The co-owner appointed an advocate to defend his right to keep the extensions. He claims I am not affected because the extensions are on HIS side – but there are no sides in a 50% undivided share. I have run out of a route to go to bring an end to this nightmare! Regards Maureen Hobbs – Pretoria Duet Sectional Title Development.

    • Karen Miles.
      August 15, 2014

      Dear Maureen,

      I have a similar problem, except the Trustees have added rooms on the common property, no EUA registered or plans at Municipality ,deeds, surveyor general. No one to report it to either, shameful.
      regards,

      Karen Miles.
      Pebble Park3, Pebble Creek Estate, Greenstone,Jhb.

  10. J. Grivainis
    July 30, 2014

    An owner wishes to build a separate, free standing section (bedroom, living room, kitchen, bathroom) on his exclusive use garden area (EU i.t.o. Section 27A). If given the go-ahead, does he have to purchase this ground from the Body Corporate based on the value of the property?
    Is the onus on the Trustees or the owner to get the valuation(s)?

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