How to get a sectional owner to pay for use rights, or remove unauthorised improvements.
By Graham Paddock
It is not unusual for sectional title schemes to include parts of the common property that are exclusively used, improved and/or enclosed by owners, but which are not formal exclusive use areas. Typical examples are gardens, yards and carports.
Because these areas are not legally set up as exclusive use areas, either in terms of the scheme’s registered sectional plan or under its rules, these owners do not pay additional contributions to cover the costs of their upkeep. The result is that all owners subsidise the body corporate’s costs or repair and maintenance in areas only one owner can use.
The answer to this problem has been provided in terms of section 39 (6) (g) of the Community Schemes Ombud Service Act which allows an adjudicator to give “an order obliging an owner or occupier to accept obligations in respect of a defined part of a common area”.
In practice, this means that where sectional owners effectively have exclusive use but will not agree to their rights and obligations being formalised, the trustees or any owner can approach the CSOS to oblige them to accept these responsibilities.
The CSOS Act also provides a solution where the body corporate does not want to give the owners exclusive use, but want the owner to remove unauthorised improvements, such as a fence or other structure. Under section 39 (2) (d) an adjudicator can give “an order for the removal of all articles placed on or attached illegally to parts of a common area or a private area”.
If you need professional help to draft a CSOS application for this purpose, you can email consulting@paddocks.co.za for a no-obligation quote for legal services.
Thinking Inside the Box 
I wonder if this applies to paving to a front door or from the road to a garage?
For those areas that are not formal EUA’s, I wonder where the owner’s responsibilities end and those of the Body Corporate begin. Some examples that come to mind for paving and yards are: – subsidence due to incorrect backfill of trenches dug for potable water and wastewater pipes; repair and maintenance of pipes, plus lost water costs; walls, maintenance of doors and windows facing into a yard.
Hi Steve,
Thank you for your comment. However, we do not provide free 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