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Courtyards built on Common Property

By Anie Jooste on Sat, 03 Mar 2012 at 18:40

This is illegal?
Can some (10) owners in a complex simply "annex" parts of common property and fence it in and use it as Exclusive Use Area gardens?
No, i am sure they cannot.
If it was that simple, could the other 10 owners than simply take it back?
i.e. simply remove the fences? If the chairman and trustees feel too intimidated to do so?
There is no possibility that the 10 other owners will give up the gardens, as the value of the townhouses are directly reflected by the gardens. Rental values for a townhouse with garden access is about R2000 a month more.

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RE: Courtyards built on Common Property

Anne Greening replied on Sun, 04 Mar 2012 at 11:36

Hi, Anie. You will find the topic of exclusive use areas covered in Section 27 and 27 (A) of the ST Act (which you can read on the Library pages of this site, if you do not have a copy).
No, the trustees may not themselves remove the fences, but they can require that the owners do so.
If the owners fail to comply, their possibe next step would be to declare a dispute under PMR 71 (also available on the Library pages).

RE: Courtyards built on Common Property

Annie Graeme replied on Sun, 04 Mar 2012 at 20:22

please correct me if I am wrong:
Write the owner concerned a registered letter, instruct him to remove wooden fences and /or illegally erected structures and then clean up the mess within a specified time (i.e. 14 days) and inform him if he does not adhere, the courtyard and/or fences will be broken down and cleaned up and the costs thereof will be debited to his levy account. Make sure you have photo\'s of the illegal area as well as the items to be removed for future reference.
. In terms of section 38 (j) as well PMR 28(2) the trustees shall do all things reasonably neccesary for the control, management and administration of the common property. It would include the cleaning up of an illegal and/or unsightly structures or mess. You could even move the mess /illegal bricks into his unit and leave him to deal with it! We did exactly that with an obnoxious owner who built what he wanted and a health hazard in her front garden (common property). When she hadn't responded to numerous letters requesting her to remove wooded fences and illegal brick structures, the trustees had it cleaned (wooden fences taken down) and put a few things in the courtyard (which is after all common property) with a note that she had 7 days to get rid of it otherwise the trustees would assume she had no need for it and would have it taken away to the dump. As long as you stay within the rules and the stipulations of the Act, you will be fine.

RE: Courtyards built on Common Property

Annie Graeme replied on Sun, 04 Mar 2012 at 20:22

please correct me if I am wrong:
Write the owner concerned a registered letter, instruct him to remove wooden fences and /or illegally erected structures and then clean up the mess within a specified time (i.e. 14 days) and inform him if he does not adhere, the courtyard and/or fences will be broken down and cleaned up and the costs thereof will be debited to his levy account. Make sure you have photo\'s of the illegal area as well as the items to be removed for future reference.
. In terms of section 38 (j) as well PMR 28(2) the trustees shall do all things reasonably neccesary for the control, management and administration of the common property. It would include the cleaning up of an illegal and/or unsightly structures or mess. You could even move the mess /illegal bricks into his unit and leave him to deal with it! We did exactly that with an obnoxious owner who built what he wanted and a health hazard in her front garden (common property). When she hadn't responded to numerous letters requesting her to remove wooded fences and illegal brick structures, the trustees had it cleaned (wooden fences taken down) and put a few things in the courtyard (which is after all common property) with a note that she had 7 days to get rid of it otherwise the trustees would assume she had no need for it and would have it taken away to the dump. As long as you stay within the rules and the stipulations of the Act, you will be fine.

RE: Courtyards built on Common Property

Annie Graeme replied on Sun, 04 Mar 2012 at 20:22

please correct me if I am wrong:
Write the owner concerned a registered letter, instruct him to remove wooden fences and /or illegally erected structures and then clean up the mess within a specified time (i.e. 14 days) and inform him if he does not adhere, the courtyard and/or fences will be broken down and cleaned up and the costs thereof will be debited to his levy account. Make sure you have photo\'s of the illegal area as well as the items to be removed for future reference.
. In terms of section 38 (j) as well PMR 28(2) the trustees shall do all things reasonably neccesary for the control, management and administration of the common property. It would include the cleaning up of an illegal and/or unsightly structures or mess. You could even move the mess /illegal bricks into his unit and leave him to deal with it! We did exactly that with an obnoxious owner who built what he wanted and a health hazard in her front garden (common property). When she hadn't responded to numerous letters requesting her to remove wooded fences and illegal brick structures, the trustees had it cleaned (wooden fences taken down) and put a few things in the courtyard (which is after all common property) with a note that she had 7 days to get rid of it otherwise the trustees would assume she had no need for it and would have it taken away to the dump. As long as you stay within the rules and the stipulations of the Act, you will be fine.

RE: Courtyards built on Common Property

Samantha Britz replied on Mon, 05 Mar 2012 at 06:11

We have the same problem: Our complex consists of 24 apartments - 12 upstairs and 12 downstairs.
There are no exclusive use areas (checked with the deeds office).
All management and conduct and other rules are as given in SECTIONAL TITLE ACT - (checked with deeds office).
Since the complex was built, the trustees have mostly been from downstairs units.
About 10 years ago we asked the chairman and managing agent to investigate the following:
The downstairs owners have:
added / built brick courtyards to enlarge their units over ten years;
enlarged their verandas,
and “annexed” private gardens - which is common property- by putting wooden fences around them, and planting shrubs.
So far we have been given advice:
We have received the minutes going back for many years, but there is no mention of selling common property anywhere, which would have to be a unanimous (written) decision anyway. It was not approved and we have asked them to indicated what steps will be made to rectify the situation. We know a Trustee works for the body corporate and has to do everything for the benefit of the body corporate not himself or trustees or individual owners. If he has allowed or approved illegal changes then he can be held personally liable for any costs involved in rectifying the situation. He is only protected so long as he is not grossly negligent or male fide in his actions. So if it is pointed out to him that he is acting contrary to the conditions of titles, sectional title act etc and refuses to take steps to rectify the situation that he could be personally liable for the cost involved ie legal costs, costs of demolition, cost of holding special general meetings etc. The managing agents should point out their errors to the trustees and help them rectify the situation.
So we realize that if any trustee or home owner should commit perjury and / or tries to falsify or change old records or letters, "off to jail" they will go. This is a catch 22 situation: if the then trustees were in breach of their fiduciary duty , they face stiff penalties; if they falsify the records and get homeowners to lie in open court or in affidavits, they face worse charges.
Please comment on how we can actually solve this problem. Please provide a step by step solution.

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