Installing swimming pools on common property

Spring has sprung! This means summer is around the corner, and we can enjoy more time outdoors. Swimming is a favourite warm weather activity for many. One of the questions I often get is asked what process must be followed, and what authorisation is required for the installation of swimming pools within sectional title schemes, as well as swimming pools on common property in the sectional title scheme.

The answer to this question depends on where the swimming pool will be installed. The consent required and process differs depending on whether the pool is placed on unregulated common property for the benefit of all members; within an exclusive use garden for the benefit of one section; or within a section for the benefit of that owner.

In the next three articles I will discuss the consent levels; legal process to be followed; and other considerations to take into account when installing pools in sectional title schemes. This article will focus on installing pools on unregulated common property.

Neither the Sectional Titles Schemes Management Act 8 of 2011 (the “STSM Act”); nor the prescribed management rules (the “PMRs”) or prescribed conduct rules (the “PCRs”) made thereunder contain any provisions that specifically deal with the granting consent or setting out the process for the installation of swimming pools on unregulated common property.

The installation of a swimming pool on unregulated common property will be considered an alteration to common property. PMR 29(1) and 29(2) deal with alterations to common property.

PMR 29(1) deals with alterations that are not reasonably necessary, and states that:

“The body corporate may on the authority of a unanimous resolution make alterations or improvements to the common property that is not reasonably necessary.”

PMR 29 (2) deals with alterations that are reasonably necessary, and states that:

“The body corporate may propose to make alterations or improvements to the common property that are reasonably necessary; provided that no such proposal may be implemented until all members are given at least 30 days written notice with details of

(a) the estimated costs associated with the proposed alterations or improvements.           

(b) details of how the body corporate intends to meet the costs, including details of any special contributions or loans by the body corporate that will be required for this purpose; and

(c) a motivation for the proposal including drawings of the proposed alterations or improvements showing their effect and a motivation of the need for them;

and if during this notice period any member in writing to the body corporate requests a general meeting to discuss the proposal, the proposal must not be implemented unless it is approved, with or without amendment, by a special resolution adopted at a general meeting.”

Whether the installation of a swimming pool on unregulated common property in a scheme is reasonably necessary or not will depend on the circumstances of that scheme. For example, where the scheme is located in an affluent and upmarket sea-side holiday destination, it may be argued that the installation of a swimming pool is reasonably necessary from a utility and capital investment point of view.

There are prescribed management rules that could contain relevant considerations and possible restrictions for the installation of pools within sections. PMR 30(d) deals with the use of common property, and specifically the structural integrity of the building, and states that:

“The body corporate must take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area does not make alterations to a section or an exclusive use area that are likely to impair the stability of the building or interfere with the use and enjoyment of other sections, the common property or any exclusive use area.”

If the building cannot support the additional weight that a water-filled swimming pool will add, then the body corporate should not install the swimming pool. The body corporate will need to provide an engineer’s report guaranteeing that the swimming pool will not impair the structural integrity of the building.

Other considerations deal with the causing of nuisance. Swimming does increase noise within the scheme. In this regard PCR 7(1) states that:

“The owner or occupier of a section must not create noise likely to interfere with the peaceful enjoyment of another section or another person’s peaceful enjoyment of the common property.”

In addition, the body corporate must make sure that the swimming pool; the pool pump; the lawn or paving; and fence around the pool is maintained and that any defects are repaired in conformity with their responsibility to maintain common property as set out in section 3(1)(l) of the STSM Act. Keeping the pool area in serviceable repair is important so that it does not present any danger to the owners and occupiers using the pool.

It is important that the pool complies with local municipal requirements with regard to fencing and general safety because section 3(1)(p) of the STSM Act states that the body corporate must ensure compliance with any law relating to the common property or any improvement of land comprised in the common property. The applicable safety requirements will be set out in the local municipality by-laws. The body corporate should also consider placing a sign warning users that owners, occupiers and visitors use the pool at their own risk.

Additionally, PMR 23(6) deals with insurance responsibilities of the body corporate, and states that:

“A body corporate must take out public liability insurance to cover the risk of any liability it may incur to pay compensation in respect of

(a) any bodily injury to or death or illness of a person on or in connection with the common property; and

(b) any damage to or loss of property that is sustained as a result of an occurrence or happening in connection with the common property, for an amount determined by members in general meeting, but not less than 10 million rand or any such higher amount as may be prescribed by the Minister in any one claim and in total for any one period of insurance.”

The addition of swimming pools certainly adds value to the scheme, but can as shown above, have negative consequences for the other owners. It must be considered whether the installation of the swimming pool is a sensible move for the scheme generally. In schemes where a pool is installed on unregulated common property for the benefit of all owners and occupiers I recommend that the body corporate adopt a conduct rule that specifically sets out:

• The rights and obligations of the owners and occupiers in regard to the use of pools.
• The times that the pool can be used.
• The requirement that children be supervised.
• The limitation on how many people can be in the pool at one time.
• The restriction of drinking alcohol in the pool.
• The restriction of drinking from glass bottles or cups in the pool.
• Provisions that prohibit noise nuisance.
• Possible fining rule for rule infringements relating to use of pool.

Written by Dr. Carryn Melissa Durham of Stratafin