The exclusive area is ascribed and attached to the section he owns.
Despite the exclusive use nature of the area, the reader believes the body corporate should be responsible for its upkeep.
It seems the area requires structural repairs which the body corporate maintain are the responsibility of the reader.
See the reader’s question here.
An exclusive use area is for the use of the holder and excludes all other sections within the scheme and the holders of such sections.
While an exclusive use area technically forms part of the common property, it is, in simple terms, a sub-set of the common property due to its specific nature.
The recently effected Sectional Title Schemes Management Act addresses the obligations and use of an exclusive use area in section 13(1).
This section states that an owner must repair and maintain his or her section and, in respect of an exclusive use area, keep it in a clean and neat condition.
Another clause says an owner must not use his or her section or exclusive use area, or allow it to be used, in a manner which may cause a nuisance to any other occupier.
While the body corporate are obliged to repair and maintain the common property, it is not necessarily the case that they are obliged to handle the structural repairs to an exclusive use area.
As a result of an apparent conflict between the rules and the legislation, it appears to be the case that an owner should carry out repairs to the exclusive use area.
Failing to do so within 30 days, permits the trustees to do the repairs on behalf of the owner and to recover the reasonable cost of doing so from the owner.
This is in line with the 2013 decision in the case of De la Harpe v Body Corporate of Bella Toscana.
In this case the court ordered the holder of the exclusive use area to repair or rebuild a wall in accordance with the standards prescribed in the National Building Regulations and Building Standards Act.
The term maintenance was key in the matter of Body Corporate of the Solidatus Scheme v De Waal where an exclusive use area holder and the body corporate had different views as to what was included under the term.
The body corporate felt that maintenance included repairs and/or rebuilding of a structure, while the owners took an opposing view.
The court found that, due to the owner being the party benefitting from the use of the exclusive use area, the responsibility for maintenance should lie with him.
Notwithstanding that the cause of the required repairs could have been as a result of poor workmanship and/or design, the ultimate responsibility for the defects and the correction thereof lay with the owner.
The court sided with the body corporate in this matter, but the decision has been criticised by some authors.
In summary, it would appear that our reader is ultimately responsible for the required repairs to the exclusive use area.
This may serve as a caution to other holders of exclusive use areas where potentially costly repairs or remedial work may be required to consider insuring against such an eventuality.
Alternatively, the owners should compel the body corporate to insure against such risks, with the additional premiums forming part of the levies of the owners.
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