Introduction
Over the past decade we have seen various provinces in South Africa experience water shortages, with resultant regulations limiting non-essential water uses such as watering gardens, filling swimming pools and ponds and washing cars. A possible solution to this ongoing problem is the use of borehole water. This article will set out the process that needs to be followed with the installation of boreholes in sectional title schemes.
Authority for installation on common property
Most schemes, due to their physical features, are not able to facilitate a borehole for each section. It is for this reason that the trustees should do a feasibility and costs study on a single borehole that could service the whole scheme.
The installation of a borehole on common property could be justified as a reasonably necessary improvement to common property, in light of the severe drought and water shortages. PMR 29(2) makes provision for the body corporate to make alterations or improvements to common property that are reasonably necessary. It 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:
- The estimated costs associated with the proposed alterations or improvements;
- 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
- 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 improved, with or without amendment, by a special resolution adopted at a general meeting.”
Authority for installation on exclusive use areas
Some schemes, due to their physical features and layout, are able to facilitate a borehole 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 boreholes could be placed in the adjoining exclusive use gardens of those sections. The holders of exclusive use rights over parts of the gardens within the scheme may wish to install boreholes to service their section and exclusive use areas. This can be achieved by following the procedure for authorising the construction or placing of any structure or building improvement on an exclusive use area that set out in PMR 30(g), which states:
“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 construct or place any structure or building improvement on an exclusive use area which in practice constitutes a section or an extension of the boundaries or floor area of a section without complying with the requirements of the Act and the Sectional Titles Act; provided that the body corporate may by ordinary resolution —
(i) give consent for such a structure or building improvement, if they are satisfied that it does not require compliance with such requirements;
(ii) prescribe any reasonable condition in regard to the use or appearance of the structure or building improvement; and
(iii) withdraw any consent if the member or other occupier of a section breaches any such condition.”
Requirements for borehole installation
The borehole must be dug deep into the ground, and will require certain infrastructure to function. The infrastructure would include, but is not limited to, pipes, a pump, a power supply, a control panel, a tap and a storage tank. The borehole will take up some additional space within the scheme, and could be placed on common property, or within exclusive use areas.
Before anyone decides to install a borehole they should first investigate whether there is an aquifer (underground water source) on the proposed site.
Before a borehole is installed, it may also be wise to get a geotechnical surface and subsurface site inspection and investigation done, to ensure that the borehole will not cause any subsidence problems.
I also suggest that the body corporate or holder of the exclusive use right informs the body corporate insurer of the borehole installation, which may affect the body corporate insurance premium.
Finally, either the body corporate, or the holder of the exclusive use right will also need to register their boreholes with their local municipalities. Once registered, the local municipality will send a free sign to display on the property. The sign, that is clearly visible to the public, is a legal requirement during water restrictions and is necessary to avoid fines issued by water inspectors.
Legislative considerations
The Sectional Titles Schemes Management Act 8 of 2011 (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 generators and/or 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(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.
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.
Conclusion
Before the body corporate makes a decision on whether a boreholes is allowed within a scheme they should consider these abovementioned provisions, and weigh the possible noise and appearance factors against the need for owners and occupiers to have the additional water supply.
In the normal course of events I would advise that boreholes are unsightly and would cause a noise nuisance in a sectional title scheme. But, under the circumstances, it would seem reasonable for this installation and use, subject to certain restrictions.
Possible solutions should be discussed to reduce the negative side-effects of the noise nuisance and undesirable aesthetic considerations. Solutions could include installing the borehole in areas in the scheme that are less visible and building a structure in an area away from the units that will house the borehole infrastructure to reduce noise nuisance.
WRITTEN BY DR CARRYN DURHAM
