Introduction
I often get consulting enquiries on who is responsible for the maintenance and repair of the foundations of sections. In this article I will set out the responsibility in regard to foundations.
What is common property
Common property includes the land and all the outer portions (outer part from median line of the floors, walls and ceilings) of the building including the basement and foundations; the attic and roof; passages; stairwells and elevators; communal utility rooms such as foyers, storerooms and laundromats; gardens, patios and balconies; recreational amenities such as club houses, tennis courts and swimming pools; scheme boundary walls; entrance gates and driveways; parking bays and garages that are not shown as sections on the sectional plan.
In accordance with the provisions of sections 5(3)(d), 5(4) and 5(5) of the Sectional Titles Act 95 of 1986 (the “ST Act”), the owners own their sections to the midpoint of its floors, walls and ceilings. The outside halves of the walls, floors and ceilings form part of the common property as does the roof above the ceiling, the foundations and the lower half of the concrete floor slab.
The foundations that support the sections are common property and thus owned by all owners of sections in the scheme.
Maintenance of common property
Section 3(1)(l) of the Sectional Titles Schemes Management Act 8 of 2001 (the “STSM Act”) requires that the body corporate must maintain all the common property and to keep it in a state of good and serviceable repair.
The ST Act and STSM Act do not distinguish between structural and non-structural maintenance and repair responsibilities. Therefore, any parts of a building that are structural in nature must be maintained by the body corporate or unit owner in a structurally sound condition depending on whether those parts of the building are common property or part of a section.
The body corporate is obliged to properly maintain the foundations and the exterior parts of the walls of the section and must keep them in a state of good and serviceable repair in terms of section 3(1)(l) of the STSM Act. The body corporate must carry out and pay for whatever works are required to keep common property in a state of good and serviceable repair.
Servitudes of support
Section 28 of the ST Act creates these reciprocal servitudes for subjacent and lateral support. The implied servitudes operate between the sections themselves and between sections and the common property. These servitudes are deemed, without registration, to be incorporated in the title deeds of all owners, and take effect and are enforceable immediately upon the establishment of the body corporate. All ancillary rights and obligations reasonably necessary to make these servitudes effective, apply in respect of these implied servitudes. It is important to note that no fault or negligence needs to be shown on the part of either the body corporate or owner for the rights or obligations created by the implied servitudes to be enforced.
The foundations of a building are common property. When the foundations fail due to subsidence for example, the body corporate is responsible to underpin the foundations. This liability to attend to some fault in the common property arises not because the body corporate has done something wrong or failed to do something, but because the legislation imposes an unqualified statutory obligation on the body corporate to maintain the common property. The implied servitude of support in terms of section 28 of ST Act is also an unqualified obligation on the body corporate. These implied servitudes do not only apply when the body corporate can be shown to be negligent or to have intentionally withdrawn their support. Subsidence in common property foundations will almost never be the result of some failure or negligence on the part of the body corporate.
The owners have the statutory duty to repair and maintain their sections in a state of good repair and, in respect of an exclusive use area, keep it in a clean and neat condition in terms of section 13(1)(c) of the STSM Act. While the owners of the
sections must carry out and pay for whatever works are required to repair the damage inside the section, the owners will have a claim against the body corporate for the reasonable cost of those repairs to the extent that they can be shown to be the direct result of any failure in the common property. This claim is based on the fact that this internal damage resulted from the failure of the common property foundation to support the section as required by the implied servitude of subjacent support contained in section 28 of the ST Act.
Conclusion
Most insurers have subsidence as an exclusion in their cover. Therefore body corporate’s will be liable for underpinning foundations in circumstances where the common property does not support the foundations. It is for this reason that I suggest that the body corporate employ structural engineers to assess any possible concerns in areas where subsidence is a risk such that the body corporate can assess and save toward any expensive foundation repair or mainainance.
WRITTEN BY DR CARRYN MELISSA DURHAM
