The building industry in South Africa is tightly regulated, but construction problems can and do still occur, sometimes several years after homes have been completed, and when these defects are in a Sectional Title complex, the body corporate needs to know what to do to ensure they are rectified as soon as possible.
That’s the word from Andrew Schaefer, MD of leading property management company Trafalgar, who notes that the Sectional Title Schemes Management Act (STSMA) establishes the body corporate as a legal entity with the right to sue the developer and/ or the construction company for any damage to the common property that is due to building defects.
“And our courts have established that no special resolution is required for this, although we do recommend that the trustees appointed by the body corporate consult all owners and seek advice from an attorney before taking any legal action.”
Alternatively, he says, the trustees may wish to seek mediation or arbitration to resolve the issue through the Community Schemes Ombud Service (CSOS), as this can be much less costly and time-consuming than going to court. It can also lead to a more amicable resolution.
“The CSOS is empowered to mediate disputes between the body corporate and the property developer / building contractor in instances where the Sectional Title scheme has been established and registered in terms of the Community Schemes Ombud Service Act. If necessary, it also offers adjudication and arbitration mechanisms to help parties resolve disputes without having to go to court.
“However, the CSOS always prefers not to intervene unless the parties to a dispute have previously done all they can to resolve matters themselves, so the first thing for trustees to do when they notice building defects on the common property is to contact the developer or contractor, find out if they will take responsibility for fixing the defects, and establish a time frame for them to do so.
“Common property defects can include serious problems such as roof leaks, rising damp, structural wall cracks, spalling of concrete, debonding of exterior wall plaster, and pavement or pool cracks due to subsidence, so there is usually no time to waste in getting them fixed.”
In addition, says Schaefer, trustees should check the warranties or guarantees that were provided by the developer or building contractor and see if these are still in force.
All home builders in SA are legally required to be registered with the National Home Builders Registration Council (NHBRC)* and to make a contribution to the NHBRC Warranty Fund for each construction project they undertake.
They are also required to strictly follow the National Building Regulations as well as the NHBRC’s technical requirements, and to guarantee that they will:
- Rectify any non-compliance in terms of plans and specifications, or any deficiency related to design, workmanship or materials, as notified by the homebuyer, within three months of the property being occupied;
- Rectify any roof leaks attributable to workmanship, design or materials, within 12 months of the date of occupation; and
- Rectify any major structural defect that occurs within five years of the date of occupation.
However, he notes, if the developer or contractor is no longer in business or not in a position to rectify any defects that occur in these time periods, it becomes the responsibility of the NHBRC to ensure that any existing warranties are honoured, after the trustees have followed its own complaint and conciliation process. The maximum payout that can be expected from the NHBRC Warranty Fund currently is the lesser of the original project enrolment value, or R500 000.
“And of course if the warranties have expired, the trustees may have no choice but to approach the CSOS or the courts, but once again, we would suggest that they be guided by a legal professional who specializes in Sectional Title matters.”
Issued by the Trafalgar Property Group
For more information contact
Andrew Schaefer on 011 214 5228
Or visit www.trafalgar.co.za
