Sectional title corner – What happened to the harmonious appearance rule?
Hi there, I own a sectional title unit that has two patios – one from my lounge, and the other from my bedroom. I do not use the bedroom patio and would like to enclose it with glass sliding doors, requiring zero structural work. But the body corporate has said I cannot do this as it would not fit in with the look and feel (harmonious appearance) of the complex. What can I do? – Paul
Dear Paul, with the introduction of the new Sectional Title Schemes Management Act and its Prescribed Management Rules (PMR) the harmonious appearance rule fell away. The trustees can, however, use the following to assist them in making their decision:
Section 13(1) An owner must –
(d) use and enjoy the common property in such a manner as not to interfere unreasonably with the use and enjoyment thereof by other owners or other persons lawfully on the premises;
(e) not use his or her section or exclusive use area, or permit it to be used, in a manner or for a purpose which may cause a nuisance to any occupier of a section
Also PMR 30
30. The body corporate must take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area does not—
(b) use a section or exclusive use area so as to cause a nuisance, in breach of section 13(1)(e) of the Act;
(d) make alterations to a section or an exclusive use area that are likely to impair the stability of the building or interfere with the use and enjoyment of other sections, the common property or any exclusive use area
(e) do anything to a section or exclusive use area that has a material negative affect on the value or utility of any other section or exclusive use area
The trustees also have to take into consideration the purpose of the area:
Section 13(1) An owner must—
(g) when the purpose for which a section or exclusive use area is intended to be used is shown expressly or by implication on or by a registered sectional plan, not use nor permit such section or exclusive use area to be used for any other purpose: Provided that with the written consent of all owners such section or exclusive use area may be used for that purpose as consented to.
The body corporate must take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area does not—
(f) subject to the provisions of section 13(1)(g) of the Act, use a section or exclusive use area for a purpose other than for its intended use as —
(i) shown expressly or by implication on a registered sectional plan or an approved building plan;
(ii) can reasonably be inferred from the provisions of the applicable town planning by-laws or the rules of the body corporate; or
(iii) is obvious from its construction, layout and available amenities;
So if it is expressly shown or implicated to be a patio you will have to get permission from all owners to change the use to it being part of the bedroom. It can, however, be argued that a patio’s use is to be part of the living space and that you making it part of the bedroom is not changing that use. It will be up to the Ombud to decide if this ever becomes a dispute.
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Who is Karien Coetzee?
Karien Coetzee is the national property management consultant at property management company, Trafalgar. She holds qualifications in sectional title schemes management and homeowners association management.