Sectional Titles

MCS Courier – June 2006

This, the latest issue of MCS Courier, has a number of interesting articles which are highlighted below.

Affordable housing for the previously disadvantaged
"Where are we going?", is the question asked, when one considers the almost overwhelming pressures that have built up. In solving the problem it is vital that, for the benefits of home owning to materialise, homeowners understand them. From this will flow the necessary insights, knowledge and skills to ensure responsible home ownership. If one considers that many new housing units are sectional title units, then need for the introduction of training for "ownership management" becomes acute in order to prevent the failure of housing initiatives.

The Constitution, the Constitutional Court, and Mrs Jaftha
A discussion of section 26 of the Constitution and how it affects body corporates with regard to additional costs and delays in recovering arrear levies and traditional debt collection procedures as governed by section 66 of the Magistrates' Court Act.

Waarskuwing oor Keuring van Huurders
Basically a sectional title owner rented out his flat to unsuitable tenants. When the trustees prohibited their moving in, the owner instituted an action in the Small Claims Court and, basing his claim on the right to adequate housing as found in section 25 of the Constitution, he left the Court a happy man. Tertius Maree's commentary on this, briefly, is that a reliance on the Constitution is not the issue. What is at issue is not the right of trustees to accept or reject tenants, but rather the means by which such problems are addressed.

He suggests that rules governing such situations such as the number of people in each flat; the use of communal property; noise, etc should be considered. These should be backed up and enforced with procedures and fines.

Freezing the Developer's Voting Powers
A closer look at some effects of phased development, most notably the ability of developers to impose their will through initial superior voting powers on new owners in sectional title complexes. Of relevance here is the decision of Wimbledon Lodge (Pty) Ltd v Gore NO and Others 2002(2) SA 88(C), in which it was held that a developer cannot use his voting rights to defeat a unanimous resolution instituting an action bought against himself in terms of section 36(4)(e) of the Sectional Titles Act.

But a developer could also find his position unjustifiably weakened. Such a situation occurs when, in a phased development, with the first section being complete and the phase or subsequent phase yet to be begun, the developer finds he/she is bankrupt in terms of voting powers. This erosion of voting powers often catch developers by surprise and they should take it into account during the planning stage.

MCS Courier

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