A tenant has installed the dish, apparently without permission, on the fascia board of his flat and the owner – who says the dish is in the same position as a previous one – refuses to order the tenant to place it in a suitable position.

The trustees have ordered the owner in writing to request the trustees’ permission for the installation of the aerial (which has never been done) and, once permission has been granted, also to have it placed in the proper place.

Lucille Geldenhuys

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says there are various provisions in the Sectional Titles Act No 95 of 1986 and the standard rules that limit owners’ and occupiers’ right to make installations and alterations to their sections and common property.

“For instance, management rule 68 states that owners may not do something to their sections or exclusive use areas that will prejudice the harmonious appearance of the building.”

Geldenhuys says conduct rule four states that an owner or occupier may not make alterations or additions to the common property without obtaining the consent of the trustees.

“Conduct rule five stipulates that nothing may be done to or placed on any part of the common property that, in the discretion of the trustees, is aesthetically displeasing.”

Geldenhuys says Section 35 of the act provides that the rules of the scheme will bind the body corporate, the owners as well as any person occupying a section.

“The act and management rules provide that the trustees shall do all things reasonably necessary for the control, management and administration of the common property.”

The trustees’ permission must therefore be obtained before any installation or alteration to common property is done, even if it is merely to replace an existing item with a new one, according to Geldenhuys.

Schalk van der Merwe

Schalk van der Merwe from Rawson Properties Helderberg says the trustees may not, upon receiving a request for the installation of the replacement item, unreasonably withhold their consent.

“They may, however, impose a condition that the new item be installed in another manner or place than the original, due to uniformity or other requirements.”

Van der Merwe says, in the case of the reader, the owner argues that the new dish was installed in the same position as the previous one and that the new installation should therefore be allowed.

“The fact that a previous dish was installed in an unsuitable place, with or without consent, does not set a precedent to continue in the same manner.”

According to Van der Merwe, the owner must still obtain the trustees’ consent for the installation of the new dish and adhere to their reasonable conditions.

“If the owner continues to ignore the trustees’ written demands, they must take such steps that are authorised by the scheme’s rules, for example the imposing of fines.”

Alternatively, says Van der Merwe, the owner may be disqualified from voting for ordinary resolutions at any general meeting.

“If a real dispute develops, the matter may be referred to arbitration.”

Die leser het sonder vergoeding na die tuin omgesien en selfs plante op eie onkonste aangeplant. Weens gesondheidsredes is sy nou nie meer in staat om na die hele tuin om te sien nie en het sy as trustee bedank.

Die voorsitter is glo nou besig om goedsmoeds plante uit die tuin te verwyder en sy wil weet of sy enige regte in dié verband het. Die leser wil ook weet of sy steeds vir haar eie plesier na ’n klein gedeelte van die tuin mag omsien.

Lucille Geldenhuys

Lucille Geldenhuys van Lucille Geldenhuys Prokureurs op Stellenbosch sê een van die take van die regspersoon, kragtens artikel 37 van die Deeltitelwet Nr 95 van 1986, is om die gemeenskaplike eiendom te onderhou. “Die instandhouding van die tuin en plante is ’n tipiese voorbeeld.”

Geldenhuys sê die gemeenskaplike eiendom – wat bestaan uit die gebou en erf, maar nie die binnekant van die dele nie – word deur alle eenheidseienaars gesamentlik besit in onverdeelde aandele proporsioneel tot die deelnemingskwotas van hul onderskeie eenhede.

“Daar mag slegs met die gemeenskaplike eiendom gehandel word op die wyse waarop die eienaars saam besluit. Afhangende van wat daar met die eiendom beoog word, sal ’n eenparige of spesiale besluit vereis word.”

Soos in die leser se geval, kan dit gebeur dat een van die eienaars aanbied om die onderhoud van die tuin met of sonder vergoeding te behartig, sê Geldenhuys. “Die eienaars kan dan saam besluit of hulle die taak aan dié persoon wil toevertrou, en of hulle verkies om eerder van ’n tuindiens gebruik te gebruik.”

Schalk van der Merwe

Schalk van der Merwe van Rawson Properties Helderberg sê indien hulle sou besluit om die taak aan die eenheidseienaar toe te vertrou en indien daar vergoeding is, sal dit as deel van die begroting by die algemene jaarvergadering deur die eienaars goedgekeur moet word.

“Die tyd en koste van die tuinmakery kan egter ook as ’n skenking deur die betrokke eienaar hanteer word, soos in die leser se geval.”

Van der Merwe sê dit sal nie toelaatbaar wees vir die voorsitter om op sy eie inisiatief, en sonder om minstens met die ander trustees te praat, die tuin van die skema te verander nie.

“As die veranderinge as normale instandhouding gesien word, mag die trustees ’n besluit daaroor neem. Uit die inligting wat die leser verskaf, blyk dit egter dat die veranderinge redelik groot is en dat dit die voorkoms van die skema mag verander.”

As veranderinge aan die tuin en die onderhoud daarvan ’n koste beloop, sal dit tien teen een as ’n luukse verbetering beskou word wat slegs met die toestemming van die eienaars gedoen mag word, volgens Van der Merwe.

“Selfs al het die voorsitter die nodige toestemming verkry, kan die leser nogtans oorweeg om die eienaars te vra om steeds ’n klein deel van die tuin te versorg.”

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To her shock, her bond application was denied and in the process she realised there was no clause in the contract protecting her from this eventuality.

She contacted the agent, who is doing both deals, asking her why there was no such clause. The agent told her that she never thought that the reader’s bond application would be declined.

The agent said they would simply approach other banks and, if unsuccessful, try to cancel the sale. She advised against trying to include a protective clause at this late stage as she did not want to “wake sleeping dogs”.

The reader says she is aware that she has signed a legally binding contract.

Schalk van der Merwe

Schalk van der Merwe from Rawson Properties Helderberg says in terms of the Alienation of Land Act No 68 of 1981, an agreement for the sale of land must be in writing and signed by the parties or their agents acting on their written authority.

“It is important that the whole agreement be contained in the sales contract, including the conditions relating to the manner in which the buyer will finance the purchase.”

As with the reader, someone wishing to buy a new property may not be able to purchase it before his or her existing property is sold, says Van der Merwe.

“This may be due to capital being required to finance the purchase. Alternatively, the bank may only grant the finance if the buyer’s existing bond is cancelled.”

Van der Merwe says it is important to include a carefully worded suspensive condition in the offer whereby the transaction is made subject to the sale and transfer of the buyer’s current property, and/or that the buyer succeeds in obtaining a bond.

“If the wording is vague, it may lead to different interpretations between the contracting parties.”

Lucille Geldenhuys

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says if there is a material difference in the parties’ interpretation of the agreement, a legal dispute may occur and it may even be grounds for having the agreement cancelled or declared void based on misunderstanding, misrepresentation or non-disclosure.

“Even worse than including vague suspensive conditions, is including none at all. This appears to be the case with the reader.”

Geldenhuys says, from the facts given by her, the agreement does not include a condition stipulating that she must succeed in obtaining a bond.

“If this is the case, the agent will have no authority to cancel the sale. This can only be done by agreement between the reader and the seller.

“If the seller does not agree to cancel, the reader will be bound, even if she is unable to raise the necessary finance.”

Geldenhuys says if she does not perform in terms of the agreement, the seller may take legal action against her to either enforce it or to claim damages.

“It is well known that ignorance of the law is not regarded as an excuse and that there is an obligation on a contracting party to inform him or herself of the legal implications flowing from it.”

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She wants to know from our panel of experts whether maintenance work will also be for the estate’s account and if the use of services such as the telephone and DSTV are included. The trustees of the estate have disconnected the DSTV.

Lucille Geldenhuys

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says when an owner of immovable property passes away, he or she can bequeath the ownership to his or her heir subject to a right of use and/or habitation by another person for a specific period.

“Our common law recognises three legal concepts in this regard.

“The first is referred to as usufruct, which is a legal right to use and derive profit from a property belonging to someone else. Profits may include rental income as well as, for instance, that derived from farming activities.”

Geldenhuys says the user may not sell, change or destroy the property and must eventually return it to the owner who, in the case of a deceased estate, will be the person who inherited it.

“The second concept is known as usus (right of use), which entitles the user to occupy a house with his or her spouse, family and guests and he or she may let out a part of it. The user may not alienate the property or cede the right to use it to another person.”

The third, habitatio (living rights), gives a person the right to live in a property, says Geldenhuys. “The holder of a habitatio may cede his or her right to use the property to another and he or she may also rent the property out.

“It is clear that the concepts are very similar and therefore it is important that the testator get proper legal advice when drawing up the will.”

Schalk van der Merwe

Schalk van der Merwe from Rawson Properties Helderberg says it is also important that the testator indicate who will be responsible for the maintenance of the property and payment of, among other things, the rates and taxes, levies and insurance premiums.

In terms of our common law, the person who is liable for these expenses is not necessarily the person whom the testator intended, according to Van der Merwe.

“In the case of a usufruct, the user will be liable for the maintenance costs, excluding costs relating to the normal deterioration of the property, as well as expenses such as rates and taxes.”

Van der Merwe says the owner will be liable for the insurance of the property and any extraordinary expenses, for example large scale repairs. “There rests a lesser obligation on the holder of a habitatio or usus for the running expenses relating to the property.”

The exact obligations by the inhabitant or user with regard to the running costs of the property will depend on the circumstances of the case and on the provisions of the will, says Van der Merwe. “Additional services like a telephone and DSTV will not normally be included unless the will provides for it.

“In the reader’s case, it will be necessary to examine the will to determine what personal right was bequeathed to her before the extent of her rights and obligations can be determined.”

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The reader signed a one-year lease on a flat, but, within two weeks of moving in, the sink was blocked. The matter was reported to the caretaker, who said the owner had to attend to a similar problem the previous week.

She was given a plunger, but had no success and a plumber was eventually called out.

Days later the drain was blocked again and she reported it once more. She was reluctantly told that she should get someone to fix it.

The reader wants to know if she would be within her rights to have the problem sorted out on her expense and then deduct the amount from her rent.

Schalk van der Merwe

Schalk van der Merwe from Rawson Properties Helderberg says when a landlord and tenant enter into a lease agreement, the property is let for the full use and enjoyment of the tenant.

“Being a capital investment, it is important for the landlord that the property be maintained in a habitable condition. The same goes for the tenant, to ensure his or her continued, full use and enjoyment of the property.”

Van der Merwe says the lease agreement will normally determine what rights and obligations rest on the tenant insofar as maintenance work and a contribution towards the running costs of the property is concerned.

“Most often, the lease will specify that the tenant is liable for the cost of unblocking drains, replacing light bulbs, broken windows, missing keys and so on.” The obligation to effect major repairs like leaking roofs and structural problems is usually the landlord’s, according to Van der Merwe.

Lucille Geldenhuys

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says if the lease does not address the matter of repairs, the provisions of the Rental Housing Act Nr 50 of 1999 will determine the rights and obligations of the parties.

She says the act provides for an inspection by the landlord and tenant at the start of the lease to record defects to the property. “The landlord is entitled to receive it back in a good condition, taking into account the faults that were present and excluding normal wear and tear.”

Geldenhuys says it therefore follows that the tenant will be liable for repairs during the subsistence of the lease.

From the information given by the reader, says Geldenhuys, it would appear that the reader is renting a flat in a multi-storied building in which all the flats belong to one landlord.

“If the blocked drain is due to a blockage in her flat, she will be liable for the cost of the plumber, unless the lease stipulates otherwise. If others are experiencing similar problems, as it would appear, the problem may be structural.”

If so, the tenants may demand that the landlord attend to the problem to ensure that they can once again use their properties in the manner agreed to in the lease agreements, says Geldenhuys.

Van der Merwe says if the landlord does not deal with the matter promptly, the reader may proceed to have the drain unblocked so that she can use the sink again.

“The reader must however not deduct the cost from the rent. The receipt must be handed to the landlord for a refund.”

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When she recently inspected it, she realised that there was water damage in the bathroom. The paint on the walls was flaking and the ceiling was completely bare.

A plumber concluded that the water was coming from the apartment above hers and she proceeded to inform the managing agent and trustees.

It seems the owner of the offending apartment has not paid his levies for the past two years and no one is able to reach him.

The reader does not want to spend money on repainting the bathroom before the problem is sorted out. In addition, renovations to the outside of the building has not materialised even after a special levy was paid by owners.

Schalk van der Merwe

According to Schalk van der Merwe from Rawson Properties Helderberg all owners in a sectional title scheme are members of the body corporate. He says Section 37 of the Sectional Titles Act Nr 95 of 1986 deals with its functions.

“These include the establishment of a fund to cover administrative expenses, repairs, upkeep, control and management of the common property as well as for the payment of common expenses like insurance and municipal charges.”

Van der Merwe says the body corporate may require all owners to make contributions to the fund and the extent of these is determined from time to time according to the particular requirements of the scheme.

He says the functions and powers of the body corporate shall be performed and exercised by trustees, who are elected by the owners at the annual general meeting. “They are obliged to control, manage and administer the common property in terms of the powers given to them by the act.”

Van der Merwe says it is in the interest of any sectional title scheme that the trustees perform their powers and duties diligently, as this will ensure that the financial position of the body corporate remains healthy and that the buildings and common property are kept in a good state of repair.

Lucy Geldenhuys

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says the act stipulates that an owner shall be obliged to give access to any person who has been authorised by the body corporate to do maintenance work, albeit with reasonable notice. “If it is an emergency, no notice is required.”

In the case of the reader, the trustees must instruct a plumber to carry out the necessary repairs to the unit above the reader’s, says Geldenhuys. “If the owner cannot be reached, the trustees must nevertheless enter the unit and proceed with the repairs.”

She says the trustees must also submit a claim to the insurer for damages to the reader’s unit. “If the insurance does not cover these, the body corporate will be liable for the repairs.”

The fact that the owner of the unit above the reader’s is in arrears does not detract from the trustees’ obligation to attend to the necessary repairs from the levy fund, according to Geldenhuys. “It will, however, be prudent for them to take steps against the owner for recovery of the arrear levies.”

The reader must also submit a query to the trustees regarding the maintenance work for which the special levy was paid, says Geldenhuys. “If she suspects that the trustees are not performing their duties, she may consider initiating steps for the removal of the trustees from their office.”

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