His first question relates to the boundary wall of the complex, while the second is about damage resulting from a burst water pipe in his garden.
See the reader’s questions here.
As a starting point, it is important to first distinguish between a “section” and the “common property“.
Simply put, a section is what lies within the boundary walls and includes the structures and other aspects that make up the residential unit as well as other portions of the buildings, such as garages and outbuildings.
The reader should keep in mind that the owner’s responsibility runs to the median line of the exterior walls, with the outer skin being the responsibility of the body corporate.
Conversely, the common property is the balance of the land, buildings and the like not forming part of the sections.
This may also include areas such as recreational facilities, a swimming pool and surrounding areas.
Exclusive use areas also form part of the common property but have been demarcated as attached to a particular section for use by that owner to the exclusion of all others.
Because the external boundary wall forms part of the common property, the responsibility for the maintenance therefore lies with the body corporate.
The reader’s second question relates to damage caused to his garden as a result of a high-pressure water pipe, which supplies the complex, having burst on his property for the third time.
He says topsoil and debris clogged his drainage pipes and, having previously cleaned the pipes and the like himself, he thought it better to contract professional cleaners.
The reader adds that the body corporate have, on more than one occasion, refused to reimburse the costs of the cleaning or reparation work to the garden, each time citing a different reason.
The pipe that burst clearly falls within the concept of common property.
The reader says that the body corporate failed to maintain the water pipe, despite their duty to maintain the common property.
This is an example of negligence by the body corporate, particularly in light of the fact that the pipe burst on two previous occasions.
The fact that a water pipe may lie within a section is no barrier to the body corporate entering the section to perform maintenance work from time to time.
The reader also explains that no trustee has even bothered to visit the affected area or examine the pipe to see the damage it caused.
A claim for damages does not automatically arise out of the body corporate’s failure to maintain the common property.
A possible delictual claim should be considered, whereby a person is awarded monetary compensation for losses suffered.
For this to apply, all five elements of delictual liability must be proved – conduct (by act or omission), fault (by intention or negligence), wrongfulness, causation and harm.
As with most civil matters, each case should be considered on its own merits and there is case law supporting the possibility of such a claim being upheld.
The previous two bursting incidents could be a strong indicator of an increased responsibility to perform proper and regular maintenance on the water pipes and the body corporate’s failure to do so could place them in a poor position.
The basis on which the claim has been repeatedly denied is not known but it would seem that there is little, if any, merit to substantiate such a denial.
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