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Article:Maintenance of Common Property in Sectional Title Schemes - Letter

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'Maintenance of common property, in relation to a scheme, means— (a) the land included in the scheme; (b) such parts of the building or buildings as are not included in a section; and (c) land referred to in section 5(1)(d); in sectional title schemes' - Letter

I fully agree with Brian Agar’s views expressed in his excellent article ‘Maintenance of common property, in relation to a scheme, means— (a) the land included in the scheme; (b) such parts of the building or buildings as are not included in a section; and (c) land referred to in section 5(1)(d); in sectional title schemes’ 2018 (Oct) DR 19. However, I am surprised that he did not deal with subs 10(2) of the Sectional Titles Schemes Management Act 8 of 2011 (the Act), which states at s 10(4) that: ‘The management or conduct rulesin relation to a building which is divided into sections and common property, means the management rules and conduct rules referred to in section 10(2)(a) and (b), respectively; referred to in subsection (2) take effect from the date of establishment of the body corporatein relation to a building and the land in a sectional title scheme, means the body corporate of that building referred to in section 2(1);.’ This is nonsense if it means that it applies to schemes, which were established before the Act came into force, and were subject to rulesin relation to a building which is divided into sections and common property, means the management rules and conduct rules referred to in section 10(2)(a) and (b), respectively; prescribed in terms of the Sectional Titles Actmeans the Sectional Titles Act, 1986 (Act No. 95 of 1986), as amended; 95 of 1986. But it makes perfect sense if, as Mr Agar states, subs 10(12) of the Act means that management and conduct rulesin relation to a building which is divided into sections and common property, means the management rules and conduct rules referred to in section 10(2)(a) and (b), respectively; made pursuant to the Act only apply to schemes established after the Act came into force, namely, 7 October 2016. Schemes established before the date of commencement, 7 October 2016, accordingly do not in terms of their rulesin relation to a building which is divided into sections and common property, means the management rules and conduct rules referred to in section 10(2)(a) and (b), respectively;, have to have a maintenance plan and the consequent reserve fund, as they are subject to the management and conduct rulesin relation to a building which is divided into sections and common property, means the management rules and conduct rules referred to in section 10(2)(a) and (b), respectively; prescribed in terms of s 55 of the 1986 Act. The Act repealed much of the 1986 Act, but not the subsections of s 55 – which authorise regulations – which provide for management and conduct rulesin relation to a building which is divided into sections and common property, means the management rules and conduct rules referred to in section 10(2)(a) and (b), respectively;. This enables future amendments of the separate prescribed management and conduct rulesin relation to a building which is divided into sections and common property, means the management rules and conduct rules referred to in section 10(2)(a) and (b), respectively;, which apply to schemes established before 7 October 2016.

Finally, Mr Agar says ‘trustees are faced with a dilemma by the commands of the Act to establish a reserve fund’, but s 3(1)(b) of the Act continues ‘but not less than such amounts as may be prescribed by the Minister’. As no amounts have been prescribed for schemes established before 7 October 2016 presumably these ‘commands’ are a nullity for as long as no amounts have been prescribed.

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Mike Simpson, attorney, Johannesburg See also p 20 – editor. This article was first published in De Rebus in 2019 (Jan/Feb) DR 4..