The authors are: Lisa Schmidt and Ayanda David Katjitae
Introduction
Load shedding is an inconvenience that all businesses and individuals across South Africa experience. Many members living within sectional title schemes (“schemes”) have increasingly chosen to circumvent this inconvenience by opting to install generators to continue the enjoyed use of electricity.
However, generators are costly to purchase and maintain and the location of the generator in a sectional title scheme may cause noise pollution to some residents living in the scheme.
Prior to installing a generator on the common property for the use of all residents within the scheme, various provisions of the Sectional Titles Act 95 of 1986 (“the STA”), the Sectional Titles Schemes Management Act 8 of 2011 (“the STSMA”) and the Regulations to the STSMA (“the Regulations”) need to be adhered to.
This article will focus on generators located on common property for the use of all residents within the scheme.
In this article we will consider the following: –
- The provisions of STA, STSMA and the Regulations in relation to improvements or alterations to the common property;
- the provisions of STA, STSMA and the Regulations that need to be adhered to prior to generator being installed on the common property; and
- balancing the rights of residents in respect of noise pollution.
Installing A Generator On Common Property
PMR 29 of the STSMA deals with improvements or alterations to the common property and, accordingly, the installation of a generator on the common property could be considered to be an improvement or alteration to the common property. It is, thus, the responsibility of the members of the body corporate (“BC”) to determine if the improvement or alteration (in this case the generator) to the common property is “not reasonably necessary or luxurious” or “a reasonable necessary or non-luxurious” improvement or alteration to the common property.
In event that an improvement to the common property is deemed not reasonably necessary or luxurious, then a unanimous resolution of the members is required. Accordingly, Trustees can only carry out a not reasonably necessary or luxurious improvement if the BC passes a unanimous resolution to do so.
According to PMR 29(2), if an improvement or alteration is a reasonable necessary or non-luxurious alteration, or improvements to the common property, a special resolution of the members needs to be obtained prior to proceeding with the reasonably necessary improvement or alteration to the common property.
What makes an improvement necessary?
Whether an improvement or alteration to the common property is necessary and useful is dependent on each individual scheme. In many schemes, the instillation of a generator on common property is considered to be a reasonable necessary or non-luxurious improvement to the common property, because it permits the members to receive electricity supply during critical times (for example, during the night) to power their security systems which protect them from theft/harm, and it prevents them from suffering loss in the form of food rotting in fridges, or business interruptions (when there is no power to home computers). However, each scheme is different and in some schemes the installation of a generator on common property may be considered to not be a reasonable necessary or non-luxurious improvement to the common property. For example, if the scheme already has a generator or large solar power generating capacity, it might be found that it is not reasonably necessary to install another.
If the instillation of a generator is deemed by a particular scheme to be a reasonable necessary or non-luxurious improvement to the common property, a special resolution of the members will need to be obtained prior to the generator being installed and, in terms of PMR 29(2), the Trustees would be required to notify the owners of:
- the need for the generator;
- the cost of same; and
- how the generator will be funded.
If the Trustees do not receive a request for a meeting to discuss the installation of the generator within 30 days, they may proceed with the installation of the generator on the common property.
In event that the Trustees, during the notice period (30 days), receive a request for a general meeting to discuss the proposal from any member, the proposal must not be implemented (i.e. the generator must not be installed ), and a general meeting must be held to discuss the generator with all members.
If a general meeting is held, as referred to above, a special resolution will need to be adopted by the members at the meeting prior to the generator being installed.
Reserve Fund – do the trustees need owners consent to use excess funds in the reserve fund for unbudgeted expenses?
In terms of section 3(1)(b) of the STSMA and its Regulations, a body corporate has the duty to establish and maintain an additional fund, a reserve fund, sufficient to cover the cost of future maintenance and repair of the common property. As the administration fund already makes provision for estimated costs for repairs and maintenance on an annual budgeted basis, the purpose of the reserve fund is to make provision for unforeseen costs of maintenance and repairs, which have not been budgeted for.
The trustees do not have the discretion to use surplus money in the reserve fund for unbudgeted expenses without having obtained owners’ consent. The surplus funds are to be used to benefit owners and allow them to not have to contribute further to the reserve fund for certain future periods. Furthermore, the trustees may only use BC’s Administrative funds for items budgeted for in the budget approved at the annual general meeting.
In light of the above, if a generator was not included in the budget, the trustees may not use the BC’s funds from the reserve fund to finance the same without first having obtained the appropriate resolution from the members as mentioned above.
Noise Pollution
Noise pollution can be described as unwanted or offensive sounds that unreasonably intrude into people’s daily activities. Our law makes a distinction between ‘disturbing noise’ – which is “objective and is defined as a scientifically measurable noise level,” and “‘noise nuisance”,’ which is “a subjective measure and is defined as any noise that disturbs or impairs or may disturb or impair the convenience or peace of any person”. Both are illegal in terms of the Environment Conservation Act (73 of 1989) and the Noise Control Regulations.
Generators are usually “noisy” and many people are of the opinion that generators cause “noise pollution”. It is, thus, important to consider where on the common property the generator should be located, in order to cause the least damage and noise to members.
Generators should always be installed in areas where they will cause the least damage to members in the scheme. However, if for example, the majority of members live on the left side of the scheme and very few members live on the right side of the scheme and the only suitable location sites for the generator are under the majority of residents on the left side or under the minority of the residents on the right side, it would, in most instances, be more favourable to install the generator on the right side of the scheme.
In this regard, the minority residents closer to the generator experiencing noise pollution, could raise their objections to have the generator installed and/or removed from the scheme.
However, in order to prove that a noise nuisance exists, a reasonable person must find a certain noise intolerable or seriously affecting his/her enjoyment of his/her property. This test ensures that a resident that is overly sensitive to any noise is not permitted to prejudice the rights of all others in the scheme by having it removed as a result of their over-sensitivity.
It must be noted that load shedding in South Africa is experienced for only a few hours within a day (3 to 6 hours) depending on what stage of load shedding takes place and common generators installed in many sectional title schemes allow all members of the scheme to enjoy the continued use of electricity and ensure the safety of the sectional scheme. Furthermore, ‘neighbour law’ exists as a mechanism to balance the rights of neighbours “where competing interests exist.”.
In light of the above , owners’ rights to use and enjoyment of their own property are not unlimited – they are subject to the rights of others (i.e. their neighbour’s) to use and enjoy their own property and the competing rights have to be balanced where there is a conflict.
If a dispute exists regarding the proposed installation and/or the location of a generator, you should assist in resolving the dispute. The attorneyWe may, in certain cases, advise that the matter should be taken before the Community Schemes Ombud Service (“CSOS”) or brought before a relevant court to resolve the issue, or there may other avenues in which the dispute can be resolved (such as through mediation or arbitration).
Conclusion
In conclusion, generators installed on the common property are generally considered to be an improvement to the common property and the scheme members will need to jointly decide if the instillation of a generator on the common property in a scheme constitutes a reasonably “a not reasonably necessary or luxurious” or “a reasonable necessary or non-luxurious” improvement to the common property and then the appropriate process in terms of PMR29 must be followed. Lastly, members’ rights should be balanced, and one should take into account whether the temporary noise pollution experienced by the affected members is not outweighed by the benefits of the other members in the scheme.
As such, it is advisable to seek advice in order to avoid possible disputes and ensure legislative compliance before proceeding with an improvement and/or alteration on the common property of this nature.
