When to act to ensure maintenance of sections and common property in a scheme
Prescribed Management Rule (“PMR”) 70 provides a remedy for the body corporate where an owner either fails to repair or maintain their section, or fails to adequately maintain and keep any area of common property to which they have exclusive use rights in a clean and neat condition. The amendment of this rule took effect from 30 July 2015. It states that:
“If an owner (a) fails to repair or maintain his or her section in a state of good repair as required by section 44(1)(c) of the Act; or (b) fails to maintain adequately any improvement on any area of the common property allocated for his or her exclusive use, and if any such failure persists for a period of thirty days after the giving of written notice by the trustees or the managing agent to repair or to maintain, as the case may be, the body corporate shall be entitled to remedy the owner’s failure and to recover, subject to section 37(1)(b), the reasonable cost of doing so from such owner.”
What is the distinction between an owner’s duties in regard to sections and those in regard to exclusive use area?
Previously PMR 70(b) was worded as follows:
“…fails to maintain adequately any area of the common property allocated for his exclusive use and enjoyment.”
This rule created much confusion. Whereas section 44(1)(c) of the Sectional Titles Act 95 of 1986 (“the Act”) requires that an owner must repair and maintain his or her section in a state of good repair, adequate maintenance of an exclusive use area merely requires the owner to keep that area neat and clean. An exclusive use area remains part of the common property and remains the responsibility of the body corporate to maintain in terms of section 37(1)(j) of the Act. However, the cost of such maintenance must be recovered from the holder of the exclusive use right in terms of the proviso to section 37(1)(b) of the Act.
In terms of section 35(1) of the Act no rule can be in conflict with any provision of the Act, and PMR 70 was in conflict with the Act. The amendment to PMR 70(b) in 2015 means that the owner’s liability is restricted to improvements to the exclusive use area, and excludes maintenance of the area itself.
This is one of the few instances in which a rule specifically authorises the body corporate to intervene without the authority of a court order, indicating the high priority the legislature has provided for the adequate maintenance of sections and common property in a scheme.
This rule gives the trustees a way of enforcing duties set out in the Act. However, the trustees should not exercise the body corporate’s powers under this rule unless doing so is clearly in the best interests of the body corporate, and the owner concerned has been given an adequate opportunity to present their case. This is particularly the case if the lack of maintenance does not involve the common property.
The trustees should ensure that the body corporate’s interests are not prejudiced before they commit its resources to dealing with the issue. The owner above may well try to claim from the body corporate if there is other damage or loss. That is why the body corporate should only get involved when it’s absolutely necessary, and in the interests of the scheme. Therefore, this rule merely entitles the body corporate to get involved, but does not oblige the body corporate to get involved in cases where the owner fails to maintain their section or improvement.
Finally, there are those who are of the view that PMR 70 authorises a managing agent, acting on their behalf rather than on behalf of the trustees, to give defaulting owners notice to repair or maintain a section or improvements on an exclusive use area. In my view, the managing agent can only act, without authority from the trustees, if their contract gives them the authority to do so.
This story first appeared on Paddocks