Advice and Opinion

Enclosure of patios in sectional title schemes sometimes causes problems

There is constant discussion and debate on the issue of the enclosure of patios or balconies in sectional title schemes as to whether they become part of the section of the owner (in which case his participation quota will be higher) or whether it remains part of the common property but for his exclusive use, says Michael Bauer, general manager of the property management company, IHFM.

If the habitable space in the unit increases, it becomes a larger section then section 24 of the Sectional Titles Act applies, said Bauer, which would then mean that the PQ factor is higher and the levy will be higher.

The question arises as to whether this is habitable space, is situated on an enclosed exclusive use area, common property or already part of the section, he said. The owner or the trustees would have to check the section plans of the scheme and check what this area is demarcated as on the sectional plans and then establish what the enclosure has created – habitable or enclosed space.

There is no specific definition what is habitable or enclosed space in the Sectional Titles Act, but whatever decision is made by the trustees becomes a precedent for the rest of the scheme and they must careful in deciding what the ruling will be, said Bauer.

If it is decided that it is habitable space, then Section 24 of the Sectional Title Act comes into force, which says: “If an owner of a section proposes to extend the limits of his or her section, he or she shall with the approval of the body corporate, authorised by a special resolution of its members, cause the land surveyor or architect concerned to submit a draft sectional plan of the extension to the Surveyor-General for approval.”

Keeping the above in mind, said Bauer, it means that the owner can only extend the floor area of his unit onto common property if he has a special resolution from the body corporate. This resolution would have to be called for at a special general meeting and the owner would also have to amend the sectional plans. This is done at the owner’s expense and these amended plans must then be submitted to the Deeds Office. The new PQ factor will be calculated based on the additional square meterage. All this must be done before the construction is started.

If the owner encloses his balcony without consent, he is contravening the Act and he can be compelled to restore the unit to its original state at his own expense. If he refuses, the trustees can then call for arbitration or a High Court application which will force him to do so, said Bauer.

A less complicated situation is if the trustees determine that the enclosure is merely an enclosed exclusive use area, in which case all that is needed is permission from the trustees. A written application must be submitted to the trustees before the owner goes ahead with any enclosure, said Bauer, and the draft plans must be submitted. The owner must also declare that he will not be using this space as habitable space.

The conduct rules must be consulted before any changes can be made to a unit, so if restrictions are stipulated in the rules, there might be changes to these necessary before any work can take place.

There are usually stipulations in the conduct rules regarding the appearance of the enclosure and, sometimes, the standards of the contractor employed to do the job, said Bauer.

The installation standard and maintenance of these enclosures is also a contentious issue. “If there are leaks due to bad workmanship then who pays for the damage?” is a question that is brought up.

“It is important for the body corporate to be strict in setting the standards, they should have a list of preferred installers or contractors and appoint a professional if need be to set the guidelines for installation,” he said. “Once decisions are made and rules set it becomes very difficult after the fact to change rulings. It is better to have these set in the beginning so the owners know upfront what the procedures are for approval of structures on their balconies or patios to avoid problems later.”