Sectional Title Schemes: Is there a common solution to common property complaints?

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What are your rights to common property under a sectional title scheme? If you are the registered title-holder of a unit in a sectional title scheme, you are the private owner of your section and a joint owner of the common property in the scheme. Sectional owners own the common property collectively in undivided shares in accordance with the provisions of the Sectional Titles Act 95 of 1986 (“the Act”).

In the recent Supreme Court of Appeal decision of Mobile Telephone Networks (Pty) Ltd & another v Spilhaus Property Holdings (Pty) Ltd & others (208/2017) [2018] ZASCA 16 (15 March 2018) the question raised on appeal was whether the owners in a sectional title scheme had the requisite locus standi (standing) to seek interdictory relief in relation to the common property. In this case certain owners sought an Order compelling MTN and another owner of the scheme – Alphen Farm Estate in Constantia (Pty) Ltd – to remove a cell phone tower which had been erected on the common property.

The owner versus the body corporate

The Court held that Section 41 (1) of the Act found application in this instance. This section prescribes that when an owner is of the opinion that he and the body corporate have suffered damages or loss or have been deprived of any benefit in respect of a matter mentioned in Section 36 (6) of the Act, and the body corporate does not take steps against an owner who does not comply with the rules, the owner may initiate proceedings on behalf of the body corporate. The owner does this by serving a written notice on the body corporate calling on the body corporate to institute such proceedings within one month from the date of service of the notice, and stating that if the body corporate fails to do so, an application to Court will be made for the appointment of a curator ad litem for the body corporate for the purposes of instituting and conducting proceedings on behalf of the body corporate.

The Court may then on such application, if it is satisfied that the body corporate has not instituted such proceedings, that there are prima facie grounds for such proceedings, and that an investigation into such grounds and into the desirability of the institution of such proceedings is justified, appoint a provisional curator ad litem and direct him / her to conduct an investigation and to report to the Court on the return day of the provisional Order. The Court may on the return day discharge the provisional Order or confirm the appointment of the curator ad litem for the body corporate, and issue such directions as it may deem necessary as to the institution of proceedings in the name of the body corporate and the conduct of such proceedings on behalf of the body corporate by the curator ad litem.

When a body corporate can be sued

Section 36 (6) of the Act prescribes that the body corporate shall have perpetual succession and shall be capable of suing and of being sued in its corporate name in respect of –

  • any contract made by it;
  • any damage to the common property;
  • any matter in connection with the land or building for which the body corporate is liable or for which the owners are jointly liable;
  • any matter arising out of the existence of any of its powers or performance or non-performance of any of its duties under the Act or any rule; and
  • any claim against the developer in respect of the scheme if so determined by special resolution.

The owner’s right to pursue legitimate complaints

In the aforementioned case the Court accordingly held that the relief available to the owners was to approach the Court for the appointment of a curator ad litem to the body corporate, so that the curator could investigate the events complained of and, if so advised, take action aimed at somehow remedying the position. The Court held further that Section 41 of the Act, on the one hand, aims to filter out unmeritorious claims by over-zealous individuals and, on the other, ensures that individuals complaining should have the advantage of the information and the funds of their corporation in pursuing legitimate claims.

The import of the above decision is that individual owners in a sectional title scheme do not possess the requisite locus standi to seek relief against each other without invoking the provisions of Section 41 (1) of the Act and complying therewith.

The Judgement of Mobile Telephone Networks (Pty) Ltd & another v Spilhaus Property Holdings (Pty) Ltd & others (208/2017) [2018] ZASCA 16 (15 March 2018) is however expected to go on appeal to the Constitutional Court and we may see further developments in this regard.

NOTE – on 7 October 2016 the Sectional Titles Act 95 of 1986 was in fact repealed and replaced by the Sectional Title Schemes Management Act 8 of 2011. The Sectional Title Schemes Management Act 8 of 2011, at sections 2 (7) and 9 (1) thereof, however adopted the precise wording of sections 36 (6) and 41 (1) of the Sectional Titles Act 95 of 1986, respectively.

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)

Tim Hampton
C & A Friedlander Inc.- General & Commercial Litigation

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