CSOS case files: CSOS does not have jurisdiction on matters before its promulgation
The CSOS does not have the jurisdiction to make an order on the matter of outstanding levies and legal fees in a dispute between the owner of a Gauteng sectional title unit and the body corporate because the CSOS Act No.9 of 2011 does not apply retrospectively.
This was the finding made by adjudicator Dombolo Makgomo Masilela in the dispute between unit owner Heyley Urshela Liefring and the San Lynne body corporate, a sectional title complex in Florida, Gauteng.
The issue of outstanding levies and legal fees dating back to 2015 arose in the evidence presented in the response by the body corporate to Ms Liefring’s application for relief regarding incomplete repairs arising from a burst pipe undertaken on behalf of the body corporate by a plumber and the payment of levies for an exclusive-use open parking lot in the complex’s parking area.
Referring to the issue of outstanding levies and legal fees, the arbitrator stated that “this matter emanates from 2015, before the promulgation of the CSOS Act and its regulations which were promulgated on 16 October 2016”.
The applicant asked the adjudicator to rule that the body corporate must complete and pay for the repairs to her bathroom, including the replacement of tiles, as the plumber had been forced to access the pipe, which was in the common area, from inside her unit. The body corporate had paid for the repair of the pipe but declined to pay for the completion of the job because the remainder of the work was in Ms Liefring’s unit. Therefore, she was responsible for payment for that portion of the job, the body corporate claimed.
“Section 37 1(j) of the Sectional Titles Act No.95 of 1986 requires a body corporate to maintain and repair the common property and the trustees are duty bound to ensure that such maintenance and repair work is conducted in a proper workmanlike manner, failing which they are in breach of their fiduciary duties,” said Masilela.
“Sections 37(1)(o) and (p) of that Act specifically deals with the issue of maintenance to pipes. If the pipe is part of the section, in other words within the median line, it is the owner’s responsibility, unless the pipe serves more than one section or the common property, in which event the Body Corporate would be liable for the maintenance thereof. If the pipe is located outside the section, in other words on the common property, the body corporate must maintain and repair it, even if it only serves one section.
The arbitrator said that “in terms of the provisions of Section 5(4) of that Act, the common boundary between any section and another section or between a section and common property is defined as the median line of the dividing floor, wall or ceiling as the case might be.
“Therefore, the body corporate must establish the location of the pipe and whether it forms part of the common property, in which event the body corporate would be liable for the maintenance and repair thereof, or whether it forms part of the primary section. If it forms part of the primary section and only serves that primary section, then the owner of that primary section is responsible for the maintenance and upkeep thereof, but if it forms part of the primary section and serves more than one section, then the body corporate is responsible for the maintenance and repair thereof.”
The adjudicator found that the body corporate had resolved to repair the pipe, that access to the pipe was easiest from Ms Liefring’s unit and that damage to the applicant’s (internal) bathroom wall amounted to consequential damage arising out of the initial repairs undertaken on behalf of the body corporate. He ruled that “the body corporate must repair and replace the applicant’s bathroom wall”.
Rejecting Ms Liefring’s contention that she should not be charged levies for her exclusive use of an open parking bay, he said that Section 3(1)(c) of the Sectional Titles Schemes Management Act No. 8 of 2011 empowered the body corporate to recover from owners the costs of maintenance, rates and taxes and other expenses arising from the use of common areas by owners.
To read the full report of the application and the arbitrator’s adjudication order, see case 1615/2017 on the CSOS website.
Words: Blake Wilkins