NGL Attorneys | Commercial, Business and Property Law

This article will briefly consider the definitions of common property vis-à-vis sections in terms of the Sectional Titles Schemes Management Act 8 of 2011 in order to establish who must maintain what in sectional title scheme developments.

Many residential developments in South Africa are established in terms of South Africa’s sectional title scheme legislation. Residents will purchase and own their properties in sectional title developments much like residents in traditional neighbourhoods with full-title properties. However, sectional title schemes are different as it is a group-owned complex or development where the local authorities are not responsible for the maintenance of the common infrastructure. The applicable legislation thus had to provide for this and has done so by dividing the property of such group-owned complexes into different categories.

The Sectional Titles Schemes Management Act 8 of 2011 (“STSM Act”) is the most important piece of legislation which regulates the responsibilities of the owners vis-à-vis their body corporate. Owners are responsible to maintain their own properties, known as “sections ”, whilst the body corporate is responsible to maintain the common property and to keep it in a state of good and serviceable repair.

The STSM Act states that a section “means a section shown as such on a sectional plan”. This is a very limited definition and accordingly greatly limits the owner’s maintenance obligations. “Common property” on the other hand is defined in the STMS Act as (a) the land included in a scheme and (b) the part or parts of buildings which are not included in a section. In other words, common property is anything which is not included in a section, including the land underneath a section, and thus expands the body corporate’s maintenance obligations.

It is important to be able to establish exactly where a section stops and where the common property starts. This can avoid unnecessary disputes between owners and their body corporates as to who is liable for damage to something like, for example, the foundations of a section (or unit as it is commonly referred to in complexes). The STSM Act is not particularly helpful in this regard. However, section 5(4) of the Sectional Titles Act 95 of 1986 assists with this inquiry. This section states that “[t]he common boundary between any section and another section or common property shall be the median line of the dividing floor, wall or ceiling, as the case may be”. Simply put, the inside of the section will be the owner’s responsibility whilst the outside, including the foundations and soil underneath the section, will be the body corporate’s responsibility.

It is important to note that the STSM Act also provides for “exclusive use areas”. These are areas which form part of the common property, but which are for the exclusive use by the owner or owners of one or more sections. The responsibility to maintain such areas, although common property, may differ.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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