De La Harpe v Body Corporate of Bella Toscana

• Jurisdiction: South Africa
• Judge: MR Chetty J
• Judgment Date: 28 October 2014
• Docket Number: 10088/2013
• Court: KwaZulu-Natal Local Division, Durban
• Hearing Date: 05 August 2014
• Citation: 2014 JDR 2306 (KZD)

Chetty, J:

[1]

It is said that "good fences make good neighbours" suggesting that walls or picturesque white picket fences promote good neighbourliness. Not much attention is given to who is responsible for the maintenance of the fence or wall, until this becomes the bone of contention. When that happens, good neighbourliness is discarded and attention is focused on who is financially liable for the upkeep and the maintenance of the wall. Where one shares a common boundary wall or fence with a neighbour, it is usually the case that each party will maintain their respective side of the fence. Where however, as in the present case, the wall is erected within the confines of a sectional title development, the issue as to who is responsible for its maintenance, becomes somewhat obscure.

[2]

The present application is borne out of a dispute between a sectional title owner (the applicant) and the body corporate of the sectional title development (the respondent) as to who is responsible for the maintenance of an ailing wall which has

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been built to enclose the applicant's garden area, in respect of which she enjoys the right of an exclusive use. The wall also drew the attention of the local authority which issued a compliance notice to the respondent requesting it to urgently repair the wall. The applicant contends that the wall forms part of the common property and as such should be repaired and maintained at the expense of the body corporate. The latter adopts the view that the wall forms part of the applicant's exclusive use area and as such, she bears the responsibility for its maintenance and repair. The applicant framed her relief seeking the appointment of an administrator for a limited period, to oversee the repair of the wall in question, contending that such an appointment was justified as the respondent has breached its duties in terms of the Sectional Titles Act No. 95 of 1986.

[3]

It is against this background that the applicant launched an urgent application on 16 September 2013 to appoint an administrator in terms of section 46 of the Sectional Titles Act for a period of six (6) months, within which the administrator would be tasked to investigate the state and condition of the "perimeter wall" situated on the common property, and to ascertain what repairs or alterations, including reconstruction, would be required in order to render the wall safe and compliant with the National Building Regulations and bylaws. Once an administrator was appointed, the applicant contended that she would be able to raise a special levy to defray the costs of the repairs. The applicant further sought that the cost of the application be borne by the respondent, and that she be excluded from participating in the sharing of any portion of those costs, notwithstanding that she is a member in good standing of the body corporate. The urgent application was opposed and the court struck the matter from the role for lack of urgency, with the costs in relation thereto to be borne by the applicant.

[4]

In due course the respondent filed its papers to which the applicant replied, and the matter was set down for determination of the issues on the papers. The respondent filed a counter application in which it sought an order that the applicant demolish the wall on her property, and to rebuild it to the satisfaction of the building inspector. The respondent further sought that the cost of the demolishing and construction of the wall should be borne by the applicant, and that she be responsible for the cost of the counter application. Both applications were

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consolidated and heard before me on the basis that both parties were of the opinion that this was not a matter that should be referred to oral evidence.

[5]

At the outset, it is perhaps necessary to clarify that whilst the applicant's notice of motion and founding affidavit refers to a "perimeter wall" situated on the common property of the respondent, the wall which is the subject matter of the present litigation, is not a perimeter wall. The respondent correctly points out that the perimeter or boundary of the scheme is approximately 25 m away from the wall which surrounds the applicant's exclusive use area. The perimeter of the scheme is enclosed by means of a wire fence. This is clearly evident if one has regard to the aerial photograph of the sectional title units forming the scheme, and annexed to the applicant's answering affidavit as "MD4", as well as the photographs showing the outside of the walls and the thick vegetation between it and the wire perimeter fence. For the purpose of this judgment, I shall accordingly refer to the wall which is the subject matter of this dispute as the 'garden' wall.

[6]

In March 2004 the applicant purchased her unit in the respondent's scheme, located at 10 Bath Road, Southbroom, KwaZulu-Natal. According to the applicant, in 2008 she noticed that the wall, which surrounds her garden, had started to crack. The applicant's founding affidavit contains a number of photographs which shows the wall in a state of serious disrepair, with significant cracks, at one part measuring approximately 9 cm. It is not disputed by the respondent that the wall is clearly in need of urgent repair. According to the applicant, she had been engaged in discussions with the trustees of the respondent from 2008 in an attempt to have the wall repaired. She wrote to the trustees of the body corporate on 12 October 2010 in which she drew to their attention the dangers posed by the cracked wall and attributed the crack to the differences in the ground levels between her garden and the outside of the wall, which is built on a steep precipice. As a consequence of the serious cracks emerging, the applicant contends that the aesthetic appeal of her garden has been clearly diminished, as well as the cracks distracting any potential buyers from putting in any offers to buy her unit. The applicant further informed the body corporate that if the matter was not resolved, she would have no alternative but to seek legal recourse.

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[7]

In November 2010 those responsible for managing the affairs of the body corporate wrote to the owner of sectional unit seven regarding a claim to the insurers of the body corporate in relation to damage to a wall, similar to that in the adjacent unit owned by the applicant. In email correspondence it is recorded that a claim to the insurers was put on hold after it emerged that certain structures (including the walls around the units) may have been built without the necessary planning approval. It would appear that the trustees took this decision to "protect the body corporate from any action by the insurance company should it come to light that a claim was submitted on an illegally built structure". These concerns of the respondent are born out in a letter dated 31 October 2012 in which the portfolio manager responsible for the affairs of the body corporate acknowledged that the issue of the repair to the wall has been an ongoing matter, but that the fixing of the wall has been held up by the failure of the initial developer to properly submit various documentation to the local authority in compliance (it would seem) with the National Building Regulations and Building Standards Act, as well as the Sectional Titles Act.

[8]

According to the portfolio manager, several units did not have occupation certificates issued, as well as not having been registered in the Sectional Titles register. While these are problems that affect the broader sectional title community of Bella Toscana, in the opinion of the applicant the prioritisation of the range of problems facing the trustees is no answer to her claim that the body corporate or its insurers are liable for the cost of repair to the wall. Accordingly she approached her attorneys of record who directed correspondence to the respondent in December 2012 in which they clearly set out that the wall in question is built on common property, and that the responsibility for the repair and insurance of such structure falls on the body corporate. At the same time the applicant's attorney forwarded the respondent's with a copy of an engineer's report which she procured, indicating that the wall has failed structurally, and was not constructed in accordance with the requirements of the National Building regulations, and that the wall be demolished as soon as possible to avoid possible danger of collapse. The engineers suggested that a new wall be constructed with peers every 3.2m, or as a dry stack retaining wall, with a metal palisade fence for security.

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[9]

The initial response from the respondent's attorney in February 2013 was that remedial work would be undertaken to the wall at a "number of locations", suggesting that the applicant was not the only person who was affected by a cracked wall. More importantly, the respondent's attorney intimated that once quotations had been received and accepted, the body corporate would raise a special levy to fund the remedial work. Despite the assurance that the body corporate would address the concerns of the applicant, it failed to take any remedial action.

[10]

The applicant's case is that the wall forms part of the common property and therefore falls to be repaired and maintained by the respondent in terms of section 37 (1)(f) of the Sectional Titles Act, which provides that:

"a body corporate referred to in section 36 shall perform the functions entrusted to it by or under this Act or the rules, and such functions shall include—

…………………………..

(f)

to insure the building or buildings and keep it or them insured to the replacement value thereof against fire and such other risks as may be prescribed."

[11]

In light of the respondent failing to discharge its functions in terms of the...