AUTHORIZATION FOR THE ALTERATION OR ADDITIONS
TO COMMON PROPERTY

An ongoing bone of contention in Sectional Title Schemes is the authorisation required for alterations or additions to common property.  In the judgement of Paganelli and Another v Beisheim and Others (3087/2014)[2015] ZAKZDHC 19 dated 10 March 2015 (a copy attached for ease of reference) the court discussed the applicability of Conduct Rule 4 and Management Rule 33, each requiring different forms of authorization.

It was held as follows:
Conduct Rule 4
This rule was intended to be confined to minor alterations or damages only.
What the Rule 4 conveys is that, aside from the exceptions stipulated in sub-rule 4(2), an owner is not permitted to damage or alter the common property (confined to the common property associated with an owner's section) in any way, even in such a minor way as driving a screw or nail into an exterior wall, without the permission of the trustees.  This suggests that alterations to an owner's common property may be done with the permission of the trustees.

Management Rule 33
Management Rule 33(1) deals with luxurious improvements and provides that trustees need a unanimous resolution of owners to effect or remove improvements of a luxurious nature on the common property.  Sub-rule 33(2) deals with non-luxurious improvements and provides that if the trustees wish to effect or remove improvements to common property other than luxurious improvements they must follow a particular process.  If any owner asks for an improvement, a special general meeting must be convened to discuss the matter.  The proposal may then be approved by way of a special resolution of owners passed at the meeting.   

Anything not necessary must be classified luxurious.  Absent a definition of "luxurious" in the Sectional Title Act 95 of 1986, the well-established classification of improvements recognised in our common law must be the context within which Rule 33 is interpreted.  In our law we recognise (i) necessary improvements, the expenses which are necessary for the reservation of the property, (ii) useful improvements which, although they are not necessary to preserve the property, nevertheless improve its market value and (iii) luxurious improvements, which neither preserve the property nor increase its market value, but merely gratify the caprice or fancy of a particular individual.

It is thus clear that the non-luxurious improvements contemplated by Management Rule 33(2) are both "necessary" and "useful" improvements.

Readers are advised to read the case in its entirety as this provides clear guidelines for the improvement of common property in Sectional Title Schemes.