A client recently asked us what were her rights in a situation where she has an existing wooden palisade fence enclosing her exclusive use garden area (all the gardens have the same fence), but her neighbour wanted to replace the wooden fence between them with a wall, at his own cost. For various reasons the client was not happy with this change. In this article we will answer this question as well as aim to give the reader a better understanding of EUA’s in sectional title schemes.

Unlike a freehold property owner, an owner in a sectional scheme cannot improve or add structures to an EUA as he or she pleases. Rather, such owner must follow the procedure laid down in the Sectional Titles Schemes Management Act, 2011 (the Act) which includes obtaining the necessary authorisation (bearing in mind that the authority applicable will differ, depending on what he or she intends doing on or to the EUA).

In terms of Rule 30(g) of the statutory Management Rules of the Act, an owner may only construct or place any structure or building improvement on an EUA if he / she has obtained the consent of the Body Corporate, which consent may be obtained by way of an ordinary resolution. (Not to be confused with extensions to units in terms of Section 24 and right to extend the scheme in terms of Section 25 of the Sectional Titles Act, where such Act specifies the procedures to be followed for those extensions).

Therefore, in our scenario above, the owner wanting to build the wall would be in a position to do so, if a simple majority of members at a general meeting voted in favour of his proposal.

The following will in all probability be taken into account before a resolution may be passed:-

• Whether there are any restrictions in relation to wall designs imposed in terms of the rules
• Whether there any laws or by-laws which must be complied with before the wall can be erected
• Will the erection of the wall impair the stability of any building or interfere with the use and enjoyment of other sections, the common property or any other EUA’s
• Whether the erection of the wall will have a material negative effect on the value of any other section of exclusive use area.

The Act and the Regulations thereto impose various obligations on sectional title owners and the body corporate respectively, in so far as it relates to EUA’s. These include inter alia:-

• The owner of a section to which an EUA relates is obliged in terms of Section 13(1) to keep the EUA in a clean and neat condition.
• As the EUA is common property, it is the duty of the body corporate acting through the trustees to maintain and keep the EUA in a state of good repair in terms of Section 3(1) of the Act.
• In relation to point 2 above it must be remembered that the body corporate can recover any maintenance cost incurred by it from the owner entitled to an EUA, in terms of Section 3(1) of the Act which provides that the body corporate shall require the owner to make such additional contribution to the levy fund as is estimated necessary to defray the costs of rates, taxes, insurance and maintenance in respect of any such part of parts, including the provision of electricity and water.

Therefore, an owner must keep his / her EUA, including any existing structure or other improvement clean and tidy and the body corporate must maintain the same and claim an estimated maintenance cost therefore and add this to the owner’s levy.

If an owner fails to keep his or her EUA in a clean and neat condition then in terms of Rule 31(2) of the Management Rules the body corporate can give notice to the owner to do so and if such failure persists for longer than 30 days the body corporate can remedy the owner’s failure and recover its reasonable costs from the owner.