Exclusive Use Areas (EUAs) are a crucial aspect of sectional title schemes, offering specific owners exclusive rights to use certain parts of the common property, such as gardens, parking bays, or balconies to the exclusion of all other owners. However, these areas often become sources of disputes and challenges due to misunderstandings or mismanagement. This article explores some of the most common problems associated with EUAs in sectional title schemes and provides practical solutions to help bodies corporate effectively manage and resolve these issues.
Problem 1: Unauthorised Alterations
A common issue in sectional title schemes is that owners often make alterations or improvements to their EUAs without the necessary permission from the body corporate. This can include installing pools, lapas, or built-in braai areas in garden EUAs or enclosing an EUA balcony or patio to extend their living space. These changes significantly alter the common property which is owned by all owners in the scheme, and, in the case of unauthorised section extensions, means the owners concerned are not paying their fair share of levies.
Solution 1:
To address unauthorised alterations, these should either be regularised through gaining the proper approvals or the body corporate should force the owner to remove the alterations and restore the common property to its original state.
Regularisation
To regularise an alteration that does not amount to a section extension (i.e., the alteration does not increase the boundaries and/or floor area of the section), the body corporate can approve the alteration by ordinary resolution [under PMR 30(g)] and grant such approval subject to reasonable conditions which, if breached, will result in a withdrawal of approval.
To regularise a section extension, the section owner concerned needs to have the extension approved by a special resolution of the body corporate [Section 5(1)(h) Sectional Titles Schemes Management Act 8 of 2011 (STSM Act)] and follow the processes set out in Section 24 of the Sectional Titles Act 95 of 1986, which ultimately results in the registration of an amending sectional plan of extension at the Deeds Office and an adjustment of the participation quota schedule.
Forced Removal
If necessary, the body corporate can apply to the Community Schemes Ombud Service (the CSOS) for an order to enforce the removal of unauthorised alterations under Section 39(2)(d) of the Community Schemes Ombud Service Act 9 of 2011 (the CSOS Act).
Problem 2: Maintenance and Repair Disputes
Unauthorised alterations to EUAs can lead to disputes over maintenance and repair responsibilities. For example, if an owner illegally extends their section into an EUA, they might later demand that the body corporate repair any issues related to the extended area, even though it was never authorised.
Solution 2:
If it is unclear which party is responsible for a maintenance/repair issue in respect of an EUA, the first step is to check the scheme’s rules to ascertain whether the default position applies (which under the STSM Act is that the body corporate arranges the work and the owner pays for it) or whether the maintenance/repair responsibilities have been delegated directly to the owner under the scheme’s rules. Expert advice may also be needed, such as involving an architect or engineer, if the exact location or cause of the problem is unknown.
If the dispute persists, either party can apply to the CSOS for an order to resolve the issue under Section 39(6)(a) or (b) of the CSOS Act. And to prevent future disputes, the
body corporate should ensure that its rules clearly define maintenance responsibilities in respect of EUAs.
Problem 3: De Facto EUAs
A de facto EUA occurs when a portion of the common property is used exclusively by one owner without being formally designated as an EUA. This can create problems, as the body corporate cannot legally charge the owner an EUA contribution, even though other owners cannot access the area.
Solution 3:
The body corporate can resolve this issue by amending its rules under Section 10(7) and (8) of the STSM Act to formally create the EUA and allocate it to the section concerned. If the owner refuses to accept responsibility for the EUA, the body corporate can apply to the CSOS for an order under Section 39(6)(g) of the CSOS Act obligating the owner to accept responsibilities for that area.
Problem 4: Unfair EUA Contributions
Sometimes, EUA contributions are calculated unfairly, leading to disproportionate costs for certain owners. For example, using a standard formula to calculate EUA contributions may not accurately reflect the actual costs associated with maintaining different EUAs, such as a parking bay versus a garden area.
Solution 4:
Owners who believe their EUA contributions are unfair can apply to the CSOS for an order under Section 39(1)(c) of the CSOS Act declaring the contribution unreasonable and seeking an adjustment. It’s essential that the body corporate estimate EUA contributions based on actual anticipated costs related to the EUA to avoid such disputes.
Problem 5: Improper Use of EUAs
EUAs are often used for purposes other than what is stipulated on the sectional plan or in the scheme’s rules. For instance, converting an EUA garage into a flatlet without obtaining the necessary permissions.
Solution 5:
The body corporate must ensure that EUAs are used only for their intended purposes. If an owner wants to use an EUA for a different purpose, they need the written consent of all owners in the scheme [Section 13(1)(g) STSM Act]. If the owner concerned is unable to obtain the written consent of all owners they can apply to the CSOS for relief under Section 13(2) of the STSM Act.
In conclusion, while many problems and disputes arise in relation to EUAs in sectional title schemes, there are ways of resolving them.
