A Paddocks Sectional Title Lifestyle Blog
By Auren Freitas dos Santos
We deal with a number of disputes relating to exclusive use areas in sectional title schemes. The majority of disputes involve disagreements about who is responsible for maintaining and repairing these areas. The main reason for this is because it is often assumed that an exclusive use area (or EUA) is “owned” by a particular person and therefore that person is assumed to be responsible for maintaining and repairing “their” EUA.
This assumption is simply incorrect. It must be understood that an owner who enjoys exclusive use rights to an area of common property, whether registered or in terms of the rules, does not acquire “ownership” of that area, but rather an entitlement to use a defined part of the shared common property. In other words the EUA remains a part of the common property, and as such, all owners of sections in the scheme own these areas in undivided shares.
Because EUAs form part of the common property, the body corporate retains the primary responsibility to organise and carry out any maintenance or repair in respect of these areas. Therefore the body corporate cannot demand a person, who enjoys the rights to an EUA, to carry out the required remedial work. As with any other area of common property, the body corporate is obliged to carry out the remedial work.
It is important to note however, that although there is no obligation on the holder of an exclusive use right to maintain or repair the EUA, there is a financial obligation to reimburse the body corporate for costs of maintenance and repairs undertaken by the body corporate.
The Sectional Titles Schemes Management Act makes it clear that the holder of the exclusive use right is responsible for all of the costs relating to these areas, including the costs of repairs and maintenance, and it prescribes the manner in which these costs must be recovered from the owner concerned.
In Body Corporate of the Solidatus Scheme No. SS23/90 v De Waal, the court found that the intention of the legislature was to place the burden for the upkeep of EUAs where the benefit lay, in other words on the owner of the section to which those exclusive use rights were attached. The court found that it would be unfair to expect the other occupants in the scheme to contribute to the costs of repairs and maintenance of an EUA, in respect of which they could neither access nor derive any benefit from.
It is therefore clear that the obligation to maintain EUAs rests with the body corporate, while the cost of maintaining an EUA must be borne by the holder of the exclusive use right.
Should you require specific advice on how to deal with exclusive use areas in your body corporate, please don’t hesitate to contact our consulting department at firstname.lastname@example.org for a no-obligation quote to provide the necessary legal assistance.
You didnt mention the additional contribution that EAU holders have to pay
This article should have been expanded on. Whilst you are correct, the article creates the impression that the BC remains liable in all instances. You should have included that the rules could be changed to place the obligation for maintenance on the party receiving the benefit. In such an instance levies that normally would be raised on the EU area for maintenance by the BC , would then fall away as the benefactor of EU area would take over that responsibility.