ST owners, ensure your balcony’s yours before enclosing it
Enclosure of patios and balconies in sectional title schemes is a contentious issue that is notorious for creating endless debate and difficulty between owners and the scheme’s body corporate.
Michael Bauer, general manager of property management company IHFM, explains that the crux of the matter lies in whether or not the balcony area is part of the habitable area of the owner (in which case the participation quota (PQ) will be higher) or whether it remains part of the common property but for the exclusive use of the owner. “If the habitable space in the unit increases, it becomes a larger section and then section 24 of the Sectional Titles Act applies,” explains Bauer. “This would then mean that the PQ factor is higher and the levy will be higher.”
To determine what the unique situation is in each case, the owner of trustees of the scheme would have to check the section plans of the scheme to determine what the balcony or patio area is demarcated as on the sectional plans. It can then be established if the enclosure created a habitable or enclosed space.
The Sectional Titles Act does not provide a specific definition of what is habitable or enclosed space, says Bauer, 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.
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.”
Based on this, you can only extend the floor are of your unit onto common property if you have a special resolution from the body corporate. This resolution would have to be called for at a special general meeting and you would also have to amend the sectional plans. This will be done at your own expense and then submitted to the Deeds Office. Your new PQ factor will be calculated based on the additional square meterage. All this must be done before construction commences.
Bauer warns that if you enclose the balcony without consent you will be contravening the Act and can be compelled to restore the unit to its original state at your own expense.
It’s less complicated 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 and draft plans must be submitted to the trustees before any construction of the enclosure takes place.” says Bauer. You will also need to declare that you will not be using the space as a habitable space.
Another factor to consider is any restrictions that may be stipulated in the scheme’s conduct rules. It may be necessary for some changes to the conduct rules before any changes can be made to the unit. There are also usually stipulations in the conduct rules regarding the appearance of the enclosure as the standard of the company contracted to do the job.
Bauer says that 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 thus important that you consult with the body corporate closely to determine rules and guidelines before commencing construction on any enclosure. This will avoid problems later, once construction is finalised.