Article written by Stefano de Gouveia, Candidate Attorney, checked by Lisa Schmidt, Associate and release by Keane Roberston, Partner at Schindler Attorneys
24 May 2021
Introduction
Water leaks and damage caused by water are common occurrences in sectional title schemes. This article discusses common water leak issues that arise in sectional title schemes and examines liability in respect of water damage incurred to owners/member units and Exclusive Use Areas (“EUA’s”) in sectional title schemes.
Applicable legislation and general concepts
In order to understand the general concepts referred to in this article, it is necessary to establish the governing legislation and rules of sectional title schemes, which includes the Sectional Titles Act (“STA”)[1], the Sectional Titles Schemes Management Act (“STSMA”)[2], the Prescribed Management Rules (“PMR” – contained in Annexure 1 of the STSMA) and Prescribed Conduct Rules (“PCR” – contained in Annexure 2 of the STSMA).
It must be noted that the concepts discussed below are based on the PMR and PCR, which are the ‘default’ rules governing sectional title schemes, and will not necessarily apply if the scheme’s rules are lawfully amended, as provided for in section 10 of the STSMA.
Sectional title schemes
A sectional title scheme is made up of individually owned sections and common property.
According to section 1 of the STSMA sectional owners/members own the common property collectively in undivided shares in accordance with their participation quota.
Section 1 of the STSMA defines a unit as “a section together with its undivided share in common property apportioned to that section in accordance with the quota of the section”.
Exclusive Use Areas
An EUA is defined in section 1 of the STSMA as “part or parts of the common property for the exclusive use by the owner or owners of one or more sections.”
From this definition it is evident that an EUA is an area that forms part of the common property, but which is reserved exclusively for the use of a certain owner.
General Water Damages
Before one can determine who is liable for any damages to either a unit and/or EUA, one needs to establish what caused the damage incurred and where the damage originated.
If the source of the leak stems from the inside of the section (i.e. inside the median line of the walls, floor, or ceilings that surround the section), the repair is the owner’s responsibility. If another section or the common property has been damaged as a result of the leak, that owner or the Body Corporate, while still responsible to make their own repairs, would have a claim for the reasonable cost of their repair from the owner of the section where the leak originated. Conversely, the owners of sections where there has been interior damage as a result of water seeping in from the common property may claim the reasonable costs of their repairs from the Body Corporate.
Burst Geysers
PMR 31 deals with maintenance obligations and more specifically, it states that “Notwithstanding that a water-heating installation forms part of the common property and is insured by the Body Corporate, a member must maintain, repair and, when necessary, replace such an installation which serves that member’s section or EUA; provided that where such an installation serves sections owned or EUA’s held by more than one member, the members concerned must share the maintenance, repair and replacement costs on a pro-rata basis.”
It is clear that PMR 31 requires owners who receive a flow of heated water from a geyser or similar source to repair, maintain and replace same at their own cost despite the fact that the device may be part of the common property.
The main maintenance and repair responsibilities are dealt with in Section 3 and Section 13 of the STSMA, which state that the Body Corporate must maintain all the common property and keep it in a state of good and serviceable repair, and an owner must repair and maintain his or her section in a state of good repair. The clearly STSMA attributes legal responsibility for maintenance and repair of the common property to the Body Corporate and maintenance of sections to the respective owners.
Notwithstanding the above, the STSMA does not deal with responsibility for consequential or resultant damage, thus the Body Corporate is not automatically liable for the repair of damage to sections caused by a failure on common property. However, the owner of the affected section is entitled to make a claim for the reasonable cost of the repair from the Body Corporate.
Damages to common property
Section 3 of the STSMA prescribes that the Body Corporate bears the statutory obligation to maintain and repair all the scheme’s common property, including all EUAs, and section3(1)(r) of the STSMA states that:
“A body corporate must perform the functions entrusted to it by or under this Act or the rules, and such functions include… subject to the rights of the local municipality concerned, to maintain and repair including renewal where reasonably necessary, pipes, wires, cables and ducts existing on the land and capable of being used in connection with the enjoyment of more than one section or of the common property or in favour of one section over the common property”.
Where a pipe, wire, cable or duct is within a section and it is used to service more than one section or the common property, the Body Corporate must maintain, repair, and renew it when necessary. Regardless of where the pipes, wires, cables or ducts are situated, if they require maintenance at a point where they provide services to more than one section or to the common property, then the Body Corporate must do the work at its expense.
Again, if the owner has attended to the maintenance and repairs the owner may be able to claim the amount spent by the owner in respect of the necessary repairs and consequential damages from the Body Corporate.
Damage to the ceiling/roof
In the event that a water leak emanates from the common property and the leak causes damage to the owner’s property, then the Body Corporate is liable to repair and maintain the common property, including EUAs’, as stipulated in section 3(1)(a)(i) and owners of sections are responsible for keeping their EUA’s in a clean and neat condition in terms section 13(1)(c) of the STMA. Furthermore, the Body Corporate has the responsibility to ensure that common property repairs and maintenances are duly attended to at its expense.
However, the owners of sections where there has been interior damage as a result of water seeping in from the common property may claim the costs of their repairs from the Body Corporate and the costs of the repairs may be covered by the Body Corporate’s insurance cover.
From the STSMA, it is evident that the legal responsibility for maintenance and repair of the common property and EUAs is apportioned to the Body Corporate and the maintenance and repair of individual sections to the respective owners.
Notwithstanding the above, claims made against the Body Corporate’s insurance cover for costs related to water damage are likely to be repudiated if the source of the leak is maintenance related.
In the event that the insurer repudiates liability on the basis of a failure to maintain the roof or other infrastructure, the Body Corporate will be liable for the costs of repair and may be held liable for the resultant damage.
As such, the failure to attend to the repairs and maintenance would result in a breach of the Body Corporate’s obligations and responsibilities for the scheme.
Conclusion
The STSMA, PMR, and other regulations are all intrinsically linked in order to allow for sectional title schemes to be regulated in such a way that avoids any abuse of the common property as well as general disorder.
However, and as explained above, water leaks, damages to a unit stemming from common property and damages to common property in sectional title schemes are contentious and complicated issues. As such, section title schemes have technical regulations which need to be correctly interpreted and complied with.
Value
This article gives a brief overview of how sectional titles are regulated and who is liable for water damage arising from a number of different situations.
[1] Section Titles Act 95 of 1986
[2] Sectional Titles Schemes Management Act
