For the last few years load shedding has become an unfortunate reality in South Africa. In recent times South Africans have had to endure two to four sessions of two-and-a-half-hour power cuts a day. To complicate matters further, since the pandemic, many people have been forced to work from home. The scheduled load shedding interrupts power supply, and leaves people with no Wi-Fi and increased data usage. In this article I will focus on what individual owners residing in sectional title schemes can do to make alternative plans to lessen the detrimental effects of power cuts. I will set out the process for the authorisation of alternative power sources, such as individual solar panels in Sectional Titles Schemes.
Some schemes, due to their physical features and layout, are able to facilitate a solar panels for each section. This would be the case in sectional title schemes where the units are free-standing houses. In these types of schemes, the solar panels could be placed on the roof (which remains common property, but could be made subject to exclusive use rights) of those freestanding homes. This may not be possible for all the owners in multi-storey buildings. In those types of schemes only the owners residing on the floor below the common property roof would benefit from the installation of solar panels above them, unless the solar panels could service all the sections in the scheme.
Legislative considerations
The Sectional Titles Schemes Management Act 8 of 2011 (the “STSM Act”) together with the prescribed management rule (“PMRs”) and prescribed conduct rules (“PCRs”) provide certain considerations before the body corporate should consider the installation of individual solar panels for each unit in the scheme.
Section 13(e) of the STSM Act states that an owner must not use his or her section or exclusive use area, or permit it to be used, in a manner or for a purpose which may cause a nuisance to any occupier of a section.
PMR 30(b) places a positive duty on the body corporate to take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area does not use a section or exclusive use area so as to cause a nuisance, in breach of section 13(1)(e) of the Act.
PMR 30(e) 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 do anything to a section or exclusive use area that has a material negative affect on the value or utility of any other section or exclusive use area.
In terms of PCR 5(1) the owner or occupier of a section must not, without the trustees’ written consent, make a change to the external appearance of the section or any exclusive use area allocated to it unless the change is minor and does not detract from the appearance of the section or the common property.
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 the normal course of events I would advise that solar panels are unsightly, but under the circumstances, it would seem reasonable to grant the owners permission to use the roof space for the installation of solar panels due to the power crisis in South Africa.
Before the body corporate makes a decision on whether solar panels are allowed within a scheme they should consider these abovementioned provisions, and weigh the possible abovementioned factors against the need for owners and occupiers to have an uninterrupted electricity supply.
Other important considerations for individual solar panels in Sectional Titles Schemes
Before the body corporate authorises the installation of the solar panels they should consider also the following:
1. Structural integrity of the building
PMR 30(d) 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.
2. Additional insurance individual solar panels in Sectional Titles Schemes
Section 14(1) of the STSM Act states that notwithstanding the existence of a valid body corporate insurance, an owner may obtain an insurance policy in respect of any damage to his or her section arising from risks not covered by the policy effected by the body corporate. It is reasonable that before the body corporate grants their consent they require the owner to obtain insurance for the solar panels and associated infrastructure.
Level of consent for authorisation
If the trustees have considered all these aspects and want to authorise individual solar panels to be installed in the scheme, the next question is what level of consent is required to authorise it?
Where individual solar panels can be installed and facilitated within the scheme, my recommendation is that the body corporate make the portions of common property on which the solar panels are installed subject to the exclusive use of the owner of that section. The exclusive use areas can be created in terms of the adoption of a conduct rule. In this way a special resolution is obtained and 75% (reckoned in both number and value) of the owners “buy into” the installation of the solar panels. The rule should deal with the installation of the solar panels for each section, and should include the following conditions:
- The type of solar panels that are permitted.
- The appropriate placement or location of the solar panels.
- A list of preferred contactors to install the solar panels.
- Clearly establish who is responsible for the maintenance and repair of the solar panels.
Conclusion
It goes without saying that solar panels can be unsightly in sectional title schemes. But, under the circumstances, it would seem reasonable to have solar panels installed and used to reduce the negative impacts of power cuts. Possible solutions should be discussed to reduce the negative side-effects of the undesirable aesthetic considerations. Solutions could include installing the solar panels in areas in the scheme that are less visible.
Written by Dr. Carryn Melissa Durham of Stratafin
