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Questions and Answers

Sectional Title Magazine
Article Five
Questions and Answers
Sectional Title Magazine: 2005

Proposed Editor's Introduction

This column is brought to you by Peter Allsopp, former MD of the National Home Builders Registration Council from 1995-2000 and ex-member of the Estate Agents Board 1996-2000, who is now in private practice, Baobab Consulting, providing trouble shooting and consumer protection services to Home Owners who are in difficulties with their homes.

Over the past few months we at Baobab have had a regular series of requests for assistance from Sectional Title Trustees and owners alike. This month we will try to cover some of the more common problems posed in a Q and A format.

Question:

We are having problems with water penetration through the unit’s ceilings, is this the owner’s responsibility or the Body Corporate's?

Answer.

The question seamed fairly simple but having inspected this project we found much more of a problem. This project is multi-storey, built in a “stepped” manner like the hanging gardens of Babylon, with the lower unit’s roof (and ceiling) forming the garden patio of the unit above. This was repeated over several storeys until the top units simply had a flat concrete roof.

Let’s handle the top units first. Most readers of this astute publication will agree that as the roof forms part of the eternal shell of the units, the maintenance of the roof falls fairly and squarely with the Body Corporate (BC). True enough the BC took it upon themselves to rectify the water leakage problems, which unfortunately pervade most if not all flat concrete roofs at some time or other.

However the garden patios are listed as part of the private use areas of the individual units and the damage was visible only INSIDE the lower units. Now the BC contends that the rectification of these problems is for the account of the owners. BUT due to the nature of the design of the units the garden patio does not pose a problem to the owner of the garden patio but to the unfortunate occupant of the unit below. So should the lower unit owner have to pay for the water leak problem occurring in the upper unit?

Well whilst we are not the legal experts as XXXX we do not believe this should be so. The whole project is suffering from poor waterproofing with some units being damper than others. We believe the BC should create a specific levy to attend to all units rather than unfairly penalize one set of owners and not the others.

Question:

We had a company assess our damage/maintenance problems. They then gave us a quote to rectify and did the work. The problems have not been addressed correctly, the contractor won’t come back to fix, what can we do?

Answer :

This is probably one of the most common problems we are faced with. The first principle we would promote is that one has to separate the responsibilities and accountabilities in the repair and maintenance process. The same applies to new build projects. The Body Corporate (BC) must get an independent expert (professional) assessment of the problems or maintenance requirements. The expert should then be employed to obtain competitive tenders, based upon proper scope of works, specifications and contract documents. The aim of these very important documents is to lay down in precise terms what is expected of the repair contractors and in the same way set out the terms and conditions of contract. The expert shall then recommend the appointment of the appropriate tenderer and once repairs are underway, inspect the project on a regular basis. The benefits for the BC are:

The project is priced competitively,

All tenderers are pricing for the same work,

Understated prime cost (PC) sums are eliminated, so that the tenders can be assessed “apple for apple”,

The successful contractor has a detailed document laying down what must be done, where and how and, most importantly,

The expert has the responsibility to ensure that the works are completed properly.

The alternative is what you are suffering from, where the advisor of the problems is the same company that undertakes the repair works; you are not able to differentiate what must be done and what the contractor wants to do just to fill his purse; the price was submitted by just one contractor (who may or may not have had someone on the BC); there was no-one able to assess if the price was right and that the appropriately correct repairs were being suggested for the particular circumstances; that no-one was empowered to be accountable to the BC for the works other than the contractor himself and finally that now the thing has gone pear-shaped you have no recourse because the company has simply closed down after taking all your money.

We see the same problems where the “Architect” of a project is also the developer/builder. We ask who is there to represent the home owner when the fan has been hit?

Please separate the two processes you will save money in the long run.

Question:

We have lots of damp problems in our complex, we have had many companies telling us how they will fix the problems but how do we know which is one right?

Answer .

Very much the same answer as above. Employ an independent expert who knows the damp proofing process (but who isn’t a damp proofing company) to assess the problems and advise you on the better method of rectification. It may require a combination of methods for different situations. It may need more than one company to rectify according to their particular speciality equipment/methods.

It is essential that the expert has no interest in the project other than to advise you on your best solution(s). The expert must not be one of the tendering contractors.

Question:

Our neighbours keep parking their extra car in front of our bedroom window. This was not built as a demarked parking space. The Trustees tell me that they have given the neighbour permission. Is this right?

Answer

The parking at the complex is laid down in the sectional title plans registered at the Deeds Office, as well as the plans approved at the Local Authority. Check these out. If they show no parking space then the space is NOT an approved space. We do not know on what legal basis the Trustees have therefore for permitting such parking and you have a good case to confront them with.

Question

Our neighbouring units, which are higher than ours, discharge their rainwater into our small garden and into our swimming pool which gets filthy after every heavy storm. We have asked them and the Developer to change this but they say they are legally allowed to. Is this correct?

 Answer

Good storm water management is the duty of every Developer, and it is required in terms of the Home Building Manual issued by the NHBRC. Unfortunately many developers get this wrong and leave the final levels to their paving subcontractors, who don’t give a damn.

We have to tell you that most Local Authorities/ Magistrates take the following approach:

Yes the uphill neighbour IS allowed to discharge their storm water onto the down-hill property,

BUT

This should be done in as natural way possible, in order to try to re-create the natural run-off from the unimproved ground as possible and with a minimum of prejudice to the lower unit.

What this means in practice is that the higher property should not collect all their water into one area and then discharge through one, Victoria Falls–type of waterfall into your swimming pool. There should be a series of holes along the whole boundary to allow the water to run off evenly across the boundary. It is then your responsibility to manage this water out of your property in the same way.

If this is physically not possible, try to negotiate, or employ an expert to do this for you, for the two neighbours to create an underground storm water pipe system, it will be cheaper than having to re-surface your pool every two years and think of the saving in pool chemicals! We have been successful in solving problems of this nature that in one case had been raging for 11 years!

If you are considering entering into sectional title, or have a problem related to the construction of your home, visit www.baocon.co.za and see what services they can offer you.


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