Part two of our series where Marina Constas, a sectional title lawyer and author of 'Demistifying Sectional Title', answers questions regarding sectional title properties...

1. Question:
When we put down our offer to purchase our simplex it had two parking bays listed. Subsequently, one of the trustees has advised that it is common property and that my parking bay can be allocated to another unit. I don't know if this makes a difference, but we are the only unit with two parking bays. Please advise.

Answer:
The parking bays may very well be allocated as common property in the Sectional Plan. Even if the bays are rule created bays — allocated for your exclusive use — it doesn't mean they belong to you.

They can definitely be re-allocated by a 75 percent special resolution of the owners. The only time that you own those parking bays is if they are registered real rights as per the title deed.

It makes absolutely no difference that you are the only unit with two parking bays.

2. Question:
I live in a sectional tile unit and the garage is a separate section with a separate title. Separate levies are charged, per square metre, for the unit and the garage. The garage doesn't have water or electricity.

Is it law that they have to charge per square metre and, if that is the case, may we alter the garage so someone can live in it? Would they be obliged to change the rules regarding garages as they differ from the rules governing the units?

There are 124 units and only 28 garages. Not all the trustees own garages so they charge levies per square metre, claiming that doing so is required by the sectional title law.

Is this true? Can I use the garage as a unit to live in as it is a separate section with a very high levy considering it is merely a garage?

Answer:
If a garage is registered as a section or as part of a section, then it falls within the calculation of the participation quota. Let's clarify that — we use the participation quota to establish the amount of each owner's levy and his voting rights. The participation quota is calculated by dividing the square metrage of your sections with the entire square metrage of the sections of the complex. In layman's terms this means that the bigger your floor space, the higher your levy and the larger your voting right.

So yes, I'm afraid the trustees are correct and no, you can't live in your garage as it would have been registered as a garage and is a non-habitable area.

3. Question:
I am the owner of a sectional title unit with a damp problem inside which comes from the outside wall that I presume is common property. There is no drainage and the damp proofing is not doing the job.

In December 2007 I was told that the Body Corporate would do the necessary repairs and after numerous e-mails to remind them I was then told it was for my account. My Chairman came to inspect the damage and acknowledged that it was rather bad and that he would get someone else in for a quote. This was about three months ago and since then nothing has happened.

The outside wall is common property so surely under the Sectional Title Law this is not my responsibility? The concrete outside all the garages is cracking and breaking and I have also been told this is the owners’ responsibility. I find that everything in my complex is my responsibility even though it is common property. Please help.

Answer:
The Body Corporate is undoubtedly responsible for this type of water ingress.

If water is coming in from the outside — that is from walls, foundation or roof — the trustees of the Body Corporate must move quickly, obtain quotes and make a decision. It is their duty to fix the problem so that it does not recur.

Start a paper trail — put the trustees on terms, request the date of the next trustees' meeting and be there. If that doesn't work you can take the Body Corporate to arbitration for failing to ensure that the trustees act according to their fiduciary mandate.

4. Question:
I'm an owner in a sectional title building and would like to know what rights children have in a complex when it comes to playing on common grounds.

I have two boys — ages three and six — and when they play outside (on common grounds) in front of my unit they are told by trustees to go inside and play inside their home.

Is there a law stipulating that a certain percentage of common grounds need to be for kids' recreation?

Answer:
More often than not, the supervision of children in a complex is governed by the Conduct Rules of the scheme. These rules normally stipulate that children and visitors' children cannot cause damage to the complex or create a nuisance therein. A clause in the rules may indicate that children may not interfere with gates, exterior lighting, fire hoses and aren't allowed to climb onto any roofs of units or remain in the pool area unsupervised. There are rules that I’ve seen where unsupervised children are not permitted to play up and down the driveways on the common property or play ball games in and around the common property.

The key is that the trustees must be reasonable — children cannot be expected to sit cooped up in a unit.

However, experience has shown that many unreasonable parents allow their children to behave as they please creating havoc around them.

Supervision, in the case of very small children, would be necessary also insofar as the risk of vehicles driving through the common property is concerned.

There is no law regarding the compulsory allocation of common property for children.

'Demistifying Sectional Title' is available by e-mailing ldacosta@bbmlaw.co.za or by phoning (011) 622 3622.

Marina no longer does the Q&A for iafrica.com. If you've got a question, click here to ask specialist sectional title lawyer Jennifer Paddock...

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