Trustee nominations and election
By Jennifer Paddocks
Prescribed management rule ("PMR") 7 requires nominations by owners for the election of trustees at any annual general meeting ("AGM") to be given in writing, accompanied by the written consent of the person being nominated at least 48 hours before the meeting. If insuifficient nominations are received before the AGM, then further nominations can be given, with the consent, at the meeting.
It is only at the acctual AGM that the numbers of trustees for the ensuing year is decided upon and therefore it will not be clear wherther or not the nominations received before the meeting are sufficient to fill the number of trustee positions until this decision has been made. If the number of nominations received before the AGM equals the number of trustees decided upon at the AGM then there will be no need for a vote at the meeting, as the duly nominated person will simply fill these positions. PMR 5 requires that the majority of trustees be owners or spouse of owners and therefore if among the nominations received before the meeting there are more non-owners than owners or spouses of owners, further nominations may need to be called for at the meeting so as to comply with this requirement.
Once all the nominations have been given, the meeting must vote. Once the votes have been tailed, the charperson must check how many of the trustee canidates are owners or spouses of owners and how many are non-owners. If the number of non-owners outweighs the number of owners or spouses of ,owners then the non-owners trustee canidate with the lowest number or least value of votes must be eliminated and this process must be repeated until the correct number of trustees is achieved with the majority being owners or their spouses.
Article reference: Paddocks Press: Volume 5 Issue 8, Page 4
Who pays balcony waterproofing repair
By Steve Broekmann
Balconies are one of life's little luxuries. They're mostly a delight - great for a braai or sit outside for a drink. But problems can arise, for example, if a balcony's waterproof layers is damaged or degenerates, causeing water seepage into the section or the balcony below.
The waterproofing is not there for the benefit of the owner with the balcony. It is there for the benefit of the owner or owners of property underneath. The person allocated the exclusive use of the balconygets no "use and enjoyment" from the waterproofing at all. What is more, he or she usually isn't in any way to blame for the problem. It as often as not, a result of poor design or bad workmanship by the developer or building contractor, rather than any neglect on the part of the owner.
The faulty waterproofing can cause mould or damp in the wall that can ruin paint, ceilings and carpets. Fixing the problem often necessitates lifting all the tiles on the balcony (many of which can break in the process), removing the old waterproofing and laying a new one. Then the tiles, or new ones because the old ones broke or can't be properly mached, are relaid.
All of that cost money. The question is, who pays?
The awnser ought to be simple, but it isn't. In my experience, the usual response of managing agents to the question of who pays is that the "owner" of the balcony must pay.
But the awnser is not that clear cut. Unfortunately, before you can answer the question, you need to know what kind of balcony rights apply. And even then there is will be grey areas.
A balcony right could be any of four different kinds. The balcony could be:-
(A) incorporated whitin a section
(B) a registered exclusive use area (EUA) in terms of Section 27 of the Sectional Title Act ("the Act");
(C) an EUA created by the rulse of the scheme either under the 1971 version of the act interms of S27A of the current one, or
(D) simply an erea to which, for all practical purposes, only the owners of the adjacent section concerned have access.
"repair and maintenance his section in a state of good repair and, in respect of an exclusive use area, keep it in a clean and neat condition;"
Clearly, therefore, if a balcony forms part of a section, the owner must "repair and maintain" it. As a section is defined in the Act as extending to the midline of the balcony slab, if the waterproofing layer is above the horizonal midline, which it usually is, the owner pick up the costs of repairs. So in a type A balcony, the registered owner of the section pays.
One would think that the distinction drawn between a section and an exclusive use area in S44(c) would signify that a different level of care applied to an EUA in terms of S27 or S27A of the Act. In particular, one might imagine that an obligation to keep a type B or C EUA balcony "clean and neat" would not saddle the owner with having to pay for repairs that benefit only owners below. After all, the word "repair" is omitted from the second half of S44(c), and S37(1)(j) of the Act provides that common property repair are the responsibillity of the trustees. However, this is not how things have turned out at least as far as a type B balcony is concerned.
Since the controversial court decision in Body Corporate of the Solidatus Scheme No. SS23/90 v De Waal & Others (1997) 3 All SA 91 (T), know as the "Solidatus" case, a precedent has existed which renders the "owner" of an EUA liable for contributing to a fund for the cost of balcony maintenance, including the maintenance of the waterproofing layer despite the fact that it is there for the benifit of owners below. That means that, until another court comes to a diffrent conclusion, or the Act is amended, the answer in the case of a type B balcony right is that the registered owner of the EUA is the person who pays.
It seems a harsh decision: the payer gets no benefit from the expense. But until some change occurs it will just have to be accepted as a negative aspect of the ownership of a balcony. There is some logic to the rule, however. In terms of Regulation 5(1)(m) of the regulation made in terms of the Act a S27 EUA is defined in a similar way to a section, namely to the midline of the slab. So in the case of a S27 registered balcony right, the waterproof layer will asually be within the EUA, as it would be in a section. As was pointed out by the court in Solidatus, registered EUAs are "so closely akin to full ownership as to be virtually indistinguishable".
The body corporate may itself contract for the repair work, but what Solidatus held was that the owners of sush balconies can be obliged to contribute to a fund for the purpose of meeting that expense. The decision turned on S37(1)(b) of the Act, which provides, among other things, that the body corporate must require owners to contribute to a fund for various expenses relating to their entitlement to the exclusive use of part, or parts, of the common property, including its maintenance, unless in terms of the rules, owners are made responsible for such cost. Such a rule is seldom found and no such provision appears in the "default" rules - i.e., the rule that apply automatically to all schemes exept to the extent that the developer, or the body corporate, has explicitly amended or supplemented them.
