Question:
My fiancé owns a townhouse and was recently advised that the balcony has a water problem that is causing damage to the unit below. The body corporate informed him that he is responsible for the maintenance of the balcony and the costs of the repair have been quoted as R7000.

Is he indeed responsible for repair of this exclusive use area and if not, how can we prove to them that this is not the case?

Answer:
In the situation you describe your fiancé has exclusive use rights to a balcony which is common property.

When it comes to exclusive use areas in sectional title schemes, one has to distinguish between the operational and financial responsibility for maintaining and repairing the exclusive use area.

The body corporate is responsible for maintaining and repairing all of the common property in terms of section 37(1)(j) of the Sectional Titles Act 95 of 1986 ('the Act'), but the owner entitled to exclusive use of an area of common property (in this case your fiancé) is responsible to pay the maintenance and repair costs associated with the common property area to which he holds exclusive use rights in terms of the proviso to section 37(1)(b) of the Act.

Therefore if the leak is in fact coming from the balcony to which your fiancé holds exclusive use rights then he will be financially responsible for the repairs that need to be carried out.

I suggest that before any work is done on the exclusive use area balcony your fiancé should request to see evidence that the leak is in fact emanating from that balcony (for example, a report from a reputable leak detector or waterproofing expert).

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