While those living in sectional title complexes may feel that they are always at the mercy of the scheme’s trustees, and have very little say on many issues concerning their own homes, there are certain instances where decisions may not be made without the written consent of every owner in the complex.
“Owners do have power and should know when and where they can wield it,” says specialist Sectional Title attorney and BBM Law director Marina Constas.
“The Sectional Titles Schemes Management Act talks about the functions and powers of the body corporate. The act then goes on to delegate the functions and powers to the trustees; but there are specific instances where the written consent of every owner is required. Not even a unanimous resolution is sufficient,” she expands.
Constas explains that the first instance is where there is land outside the boundaries of the complex which the body corporate may want to purchase. She cites the example of her recent case in the northern suburbs of Johannesburg. “In this case, the Council had a large piece of land adjacent to a complex in Killarney, Johannesburg. The owners at the complex were struggling with parking, with visitors having to park outside. They approached the Council to purchase the piece of land for additional parking. Every owner had to submit their consent in writing. One owner refused and as a result, scuppered the entire deal.”
The second instance concerns the developers of sectional title complexes and gives owners the power to influence extensions to their complex. “Developers often register a right to extend the complex, building in phases. If a developer runs out of money or cannot exercise his right to extend for any reason, he may want to sell the right to extend to another developer with resources,” Constas explains. She notes that in this case, written consent from every owner is required. “Owners may only want to give their consent when they are satisfied about what the new developer wants to build. Owners in a complex in Bruma, Johannesburg, recently refused to give their written consent for a new developer to buy the right to extend as they had heard rumours that instead of building more residential units as per the original right, the developer planned to put up a conference centre,” she reveals.
The third instance in which every owner’s written consent is needed is tied into the fiduciary duty that trustees have towards owners. “If there is a conflict of interest; for example, the painting of the complex will be undertaken by a trustee’s brother-in-law, the only way that the decision can be ratified is if every owner agrees,” Constas says.
The fourth case that demands every owner’s consent is if an owner wants to change his exclusive use area into a business venture – for example converting a carport into a spaza shop or an exclusive use courtyard into a laundromat. “This cannot simply be approved by the trustees,” she explains. “The owner must obtain the written consent of every owner. If this consent is not forthcoming, he can now approach the Community Schemes Ombud for a directive.
“Sectional title owners do have power and must be aware of when their written letter of consent counts,” Constas concludes.