A Paddocks Sectional Title Lifestyle Blog
By Dr Carryn Melissa Durham
With the load shedding and interrupted electricity supply last year, Paddocks was inundated with queries on how bodies corporate could install generators in their schemes. With the severe water shortages this year, there has been a number of questions relating to the process that needs to be followed with the installation of boreholes in sectional title schemes.
Many sectional title schemes have invested a lot of time, energy and money into their gardens. With strict water restrictions limiting non-essential water uses such as watering gardens, filling swimming pools and washing cars, we have seen a substantial increase in the interest shown in alternative water sources. In this article, I will address how bodies corporate can authorise the installation of boreholes in their schemes.
The borehole will need to be sunk deep into the ground, and will require certain infrastructure to function. The infrastructure would include, but not limited to, pipes, a pump, a power supply, a control panel, a tap and a storage tank. Inevitably this will mean that the borehole will take up some space within the scheme – it could be placed on common property, or within exclusive use areas.
Authority for installation on common property:
The installation of a borehole on common property could be justified as a reasonably necessary improvement to common property, in light of the severe drought and water shortages.
The Prescribed Management Rules (“PMRs”) contained in Annexure 1 to the Regulations made under the Sectional Titles Schemes Management Act 8 of 2011 (the “STSMA”) contain the procedure to be followed to authorise improvements to common property that are reasonably necessary. PMR 29(2) states that:
“(2) The body corporate may propose to make alterations or improvements to the common property that are reasonably necessary; provided that no such proposal may be implemented until all members are given at least 30 days written notice with details of —
(a) the estimated costs associated with the proposed alterations or improvements;
(b) details of how the body corporate intends to meet the costs, including details of any special contributions or loans by the body corporate that will be required for this purpose; and
(c) a motivation for the proposal including drawings of the proposed alterations or improvements showing their effect and a motivation of the need for them;
and if during this notice period any member in writing to the body corporate requests a general meeting to discuss the proposal, the proposal must not be implemented unless it is approved, with or without amendment, by a special resolution adopted at a general meeting.”
Authority for installation on exclusive use areas:
The holders of exclusive use rights over parts of the gardens within the scheme may wish to install boreholes to service their section and exclusive use areas. This can be achieved by following the procedure for authorising the construction or placing of any structure or building improvement on an exclusive use area that set out in PMR 30(g), which states:
“The body corporate must take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area does not construct or place any structure or building improvement on an exclusive use area which in practice constitutes a section or an extension of the boundaries or floor area of a section without complying with the requirements of the Act and the Sectional Titles Act; provided that the body corporate may by ordinary resolution —
(i) give consent for such a structure or building improvement, if they are satisfied that it does not require compliance with such requirements;
(ii) prescribe any reasonable condition in regard to the use or appearance of the structure or building improvement; and
(iii) withdraw any consent if the member or other occupier of a section breaches any such condition.”
Other important procedural steps:
Before anyone decides to install a borehole they should first investigate whether there is an aquifer (underground water source) on the proposed site.
Before a borehole is installed, it may also be wise to get a geotechnical surface and subsurface site inspection and investigation done, to ensure that the borehole will not cause any subsidence problems.
I also suggest that the body corporate or holder of the exclusive use right informs the body corporate insurer of the borehole installation, which may affect the body corporate insurance premium.
Finally, either the body corporate, or the holder of the exclusive use right will also need to register their boreholes with their local municipalities. The procedure for registration is usually a two-step process:
The sign, that is clearly visible to the public, is a legal requirement during water restrictions and is necessary to avoid fines issued by water inspectors.
If you require assistance in drafting any of the required resolutions to authorise the installation of a borehole in your scheme, please contact us at email@example.com or call us on 021 686 3950.
Image source: snymans.com
Very interesting and informative.
A lot has been said about common property and exclusive property. Please tell me when is a property for exclusive use by the owner .
R J Van Den Berg
Thank you for your comment. We are more than happy to help, however we do not give free opinions / advice. Please email us on firstname.lastname@example.org with regards to your matter, and we can provide you with a no-obligation quote, so that we can assist you.
I notice that the terminology in this article refers to boreholes. Boreholes are usually very deep and expensive and the pump is located underground.
Does the article apply equally to well points. Usually shallow with the pump above ground.
Just to clear up any confusion with regards to “it could be placed on common property, or within exclusive use areas” in the 3rd paragraph of the post.
Exclusive use areas designate areas of common property that are reserved for the exclusive use of a particular member.
It might have been better to have stated “it could be placed on common property either within an exclusive use area or an area of common property that was not reserved for exclusive use.” Some members suffer from the mistaken belief that once granted exclusive use it is no longer common property. It will always be common property however the right of exclusive use permits the holder to exclude other members from using the part of the common property to which the right relates.