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when enclosures become the new boundary
I was interested to read Prof. Paddock's comments about balcony enclosures (http://www.sto.co.za/forum/topic/3062-Enclosure_of_patio), particularly with regards to who is responsible for their repair and maintenance. But what happens if, after having enclosed a balcony that is part of a section, an owner removes the original doors/windows onto the balcony and effectively incorporates the balcony into the apartment? Who is now responsible for maintaining and repairing the windows that enclosed the balcony, which have now become the apartment windows?
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RE: when enclosures become the new boundary
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RE: RE: when enclosures become the new boundary
Hi, Mark. We had a similar case, and decided that the new external windows now define the boundary of the section; thus the maintenance of the original doors and windows now become the owner's responsibility.
RE: RE: RE: when enclosures become the new boundary
In my view the Sectional Plan establishes the extent and boundaries of a Section. It would seem that there is no provision in the S/T Act to arbitrarily decide on the boundaries of a Section. Any change to these boundaries should be established in the prescribed manner.
If the balcony was shown on the Sectional Plan as being part of the Section removing the original doors/windows on to the balcony would seemingly make no difference regarding who is responsible for maintenance, being that of the owner.
RE: RE: RE: RE: when enclosures become the new boundary
Hi, John. Mark states specifically that the balcony is part of the section - this is not a case of arbitrarily deciding on boundaries. The new windows, or walls or whatever now run along theboundary of the section, and therefore define it(whereas before it was a nebulous line between the ceiling and floor.)
There are other interesting implications here. Assuming a wall, with windows, is built along the edge of a patio or balcony on the median line; the owner would need permission to erect the outer half of this wall, as it would be common property.
RE: when enclosures become the new boundary
The balcony is already enclosed. Presuming that permission from the Trustees, who gave due regard to §68 (iv), was obtained, the maintenance of the outside of the enclosure, which is on common property is, strictly speaking, the responsiblity of the BC, unless some special conditions were imposed by the Trustees at the time they gave aproval for the enclosure of the balcony. The removal of the windows and doors inside the section, which can be done with due regard to §68 (iii), does not alter the responsibility for maintenance of the outside of the building.
RE: RE: when enclosures become the new boundary
Thank you for the responses.
Rip, I understand your point, but Prof Paddock has said (http://www.sto.co.za/forum/topic/3062-Enclosure_of_patio): "Another important point is to make sure that the enclosing owner and his/her successors in title to that unit remain responsible to carry out and pay for the maintenance and repair of the additional material that is added to be building fabric. There is no good reason that other the owners of other units and their successors in title should take over responsibility of something installed by one owner by his/her workmen. It is only the enclosing owner who has recourse against the contractors for damages arising from defective material or bad workmanship - why should the body corporate or other owners have to get involved now or at any time in the future?"
This seems to imply that maintaining and repairing the entire structure (windows, frames) that enclosed the balcony is the responsibility of the owner, no matter where it falls in relation to the median.
RE: RE: RE: when enclosures become the new boundary
Mark,
What Prof Paddock was trying to stress, and with which I agree, is that it is essential for the Trustees to make a condition as to maintenance when granting permission for an enclosure. If this was not done then, in terms of the Act, the maintenance becomes the responsibility of the BC, which is unfair.
Just for interests sake. The proposed amendmend of the STA which is currently still in the pipeline amends §5 with the addition of the words : "Provided that any window, door or other structure which divides a section from another section or from common property, shall be considered to form part of such floor, wall or ceiling;". This does away with the nonsense claim that when a windowframe is suituated on the outside of the median line of the brick wall it is wholy the responsibilty of the BC and when situated on the inside it is wholly the responsibility of the owner. The median line will therefore be in the middle of the 180 mm brick wall, can then change to the middle of a 90 mm brick wall, the middle of the window frame and the middle of the 3 mm glass pane. Maintenance of windows, doors and glass will then always be the reponsiblity of both the BC and the owner.
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