Garages: common property?
Question:
I own a sectional title unit in Lonehill. Each home has a garage and a carport. My garage has very bad damp. I have been informed that the garage does not belong to me, but the body corporate (board of trustees) does not want to take responsibility for repairing it.

It will cost more than R5500 to fix it; am I responsible to repair this?

Answer:
You refer to the garage in question as 'my garage', but say that you have been informed that it does not belong to you. The first thing you need to do is to establish the legal nature of the garage as that will determine who is responsible for repairing and maintaining it. In a sectional title scheme there are always two and often three different types of property.

The three types of property are:

  • sections;
  • common property; and
  • common property subject o exclusive use rights

A section is owned exclusively by an owner to the midpoint of its dividing floors, walls and ceilings. The owner of a section is solely responsible to ensure that his or her section is maintained and repaired in a state of good repair. If the garage is a section owned by you then you will be responsible to fix the damp problem within the section. However, remember that you only own your section to the midpoint of its walls and therefore the outer half of the garage walls or its 'outer skin' and its roof are considered common property. This means that the garage consists of two different types of property, a section and a portion of common property. If the cause of the damp is a defect in the roof or the outer side of the walls, it may well be a defect in the common property that the body corporate is responsible to fix.

The common property is owned by all owners in undivided shares. The body corporate is responsible to repair and maintain the common property in a state of good repair. If the garage is entirely common property and there are no exclusive use rights over it, then it is solely the body corporate's responsibility to fix the damp problem.

Common property subject to exclusive use rights, or an exclusive use area, is an area of common property which is owned by all owners in undivided shares, but which is reserved for the use of only one owner or a number of owners exclusively.

Exclusive use rights may be shown on the scheme's sectional plan or may be contained in the rules applicable to the scheme. The exclusive use area is still an area of common property and therefore the body corporate is responsible to repair and maintain it, but it is obliged to recover the amounts it spends on that area from the owner/s entitled to use that area exclusively. Some schemes have rules in place that provide that an owner who benefits from an exclusive use right will repair and maintain the exclusive use area as if it were part of his or her section. But in the absence of such a rule, it is the body corporate's responsibility to maintain and repair the exclusive use area and to recover the costs of doing so from the owner/s entitled to the exclusive use rights.

Therefore if the garage in question is common property subject to exclusive use rights in your favour, the body corporate would be responsible to repair the damp but it would be obliged to recover the costs of repairing the damp from you.

As mentioned, however, your scheme may have rules in place which require the owners entitled to exclusive use rights to repair and maintain the exclusive use areas themselves. If this is the case in your scheme then you would be responsible for repairing the damp.

In order to ascertain the nature of the garage you should obtain a copy of your scheme's sectional plan which you can do at your local Deeds Registry or Surveyor-General’s office. You will also need to inspect the rules of your scheme which you can also obtain from your local Deeds Registry or you can request a copy of the rules from the trustees or the scheme's managing agent.

I would then advise you to employ the services of a damp expert to report on the exact source of the damp so that you can determine whether the defect is in your section, the common property or your exclusive use area.

Once you know in what type of property the defect is situated, you will know who is responsible to repair it.

Published courtesy of specialist sectional title firm - Paddocks