Abstract
In this case a farmhouse was subdivided into two sectional title units in a sectional title scheme that consisted of these two units and an additional six-storey building comprising a further 10 sectional title units. The applicants, the owners of the unit on the ground floor of the farmhouse, wanted to replace the two kitchen windows of the unit with larger windows in order to improve the flow of natural light into the kitchen. When the owner of the unit on the first floor above them objected to this project, the applicants approached the court in order to determine what kind of authority was needed to allow them to proceed with their plans. The court decided that two kinds of authorisation would be sufficient for them to proceed. In the first place the court found that the applicants would be allowed in terms of prescribed conduct rule 4 to effect not only minor alterations to the common property but also significant alterations to the outer part of the boundary wall associated with the unit as intended in this case. In the second place the court held that the intended alterations could also proceed in terms of management rule 33, which deals with luxurious and non-luxurious improvements to the common property for which the cooperation of the body corporate is needed in the form of a unanimous or a special resolution.
The problem with this judgment is that management rule 33 deals only with improvements to the common property and does not regulate alterations to the common property. With regard to alterations of a sectional title unit, the sectional owner is not allowed to effect alterations within his or her section that impair the stability or the implied servitudes of the subjacent support of the building and of lateral support of the outside walls of the section. Furthermore, the owner is not permitted to effect alterations to his or her section that might impair the harmonious outside appearance of the building. Although the proposed replacement of the windows would not affect the harmonious appearance of the building there was a chance that the structural alterations to the outside wall, if not properly conducted, could jeopardise the stability of the building. Therefore it is submitted that the court erred in deciding that the proposed alterations could be authorised by the written consent of the trustees. This significant alteration could, as in the case of the extension of a section in terms of section 24 of the act, be effected only with the cooperation of the body corporate because it was similar to a non-luxurious improvement. Non-luxurious improvements could be carried out only if authorised by a special resolution adopted at a general meeting. Likewise, the alteration of the portion of the wall and window inside the section was impermissible without the approval of the body corporate.
Keywords: alteration of section; boundary; common property; luxurious improvements; non-luxurious improvements; section; special resolution; trustees’ consent; unanimous resolution
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