The Rationale for the Imposition of Non-Financial Obligations on Apartment Owners in a Sectional Title Scheme

• Jurisdiction: South Africa
• Citation: (2015) 26 Stell LR 168
• Pages: 168-189
• Published date: 16 August 2019
• Author: Juann Booysen
• Date: 16 August 2019

168

THE RATIONALE FOR THE IMPOSITION

OF NON-FINANCIAL OBLIGATIONS ON

APARTMENT OWNERS IN A SECTIONAL

TITLE SCHEME

Juann Booysen

LLB LLM LLD (University of Stellenbosch)

Candidate Attorney, Visagie Vos Attorneys

CG van der Merwe

BA LLB BA (Hons) BCL LLD

Research Fellow, Department of Private and Roman Law University of Stellenbosch

Emeritus Professor of Civil Law, University of Aberdeen

1 Introduction

The principal aims of sectional title schemes are to preserve the physical

integrity and the pleasant appearance of the sectional title building and to

strive for harmony in an intensied community where the individual un its

are physically interdependent and the residents are seldom completely

homogeneous.1 Since sectional owners live in close proximity and use

common facilities collectively, their extensive ownership entitlements need

to be restricted. Accordingly, each owner must surrender a certain degree of

freedom that he or she might otherwise enjoy in separate, privately owned

property.2

Therefore, in order to enhance the benets of sectional ownership, sectional

owners are burd ened with numerous nancial and non -nancial obligations. 3

The extent to which owners are prepared to comply with these obligations

will determine the degree of harmony achieved as well as the quality of the

sectional title building and the scheme’s common facilities and amenities.

Striking the ideal balance between individual freedom and the preservation

of an intact sectional title building and a harmonious community is often a

difcult goal to accomplish.4

In th is contribution, the various non- nancial as oppo sed to the nancial

obligations5 imposed on sectional owners will be examined . We shall rst

1 MC Kim “Involunt ary Sale: Banish ing an Owner fro m the Condominiu m Community” (1997-1998) 31 J

Marshall L Rev 429 429- 430; see also CG van der Mer we & L Muňiz-Argü elles “Enforceme nt of Conduct

Rules in a Condom inium or Apart ment Ownership Sche me” (2006) Liber Amicoru m Festschrift Tugrul

Ansay 247 247

2 CG van der Merwe & JC So nnekus Sectional Title s, Share Blocks and Time- SharingSectional Title s

I (2013) 9-32; see also Van der Merwe & Muňiz-Ar güelles (2006) Liber Amicor um Festschrift Tugrul

Ansay 247

3 Van der Merwe Sect ional Titles 9-3

4 Van der Merwe & Muňiz-A rgüelles (2006) Lib er Amicorum Festsc hrift Tugrul Ansay 247-248

5 S 44(1)(b) of the Act provides th at a sectional owne r “must pay all char ges, expenses a nd assessments t hat

may be payable in res pect of his section” The lev ies collected from ow ners financ e the maintenanc e and

management of t he scheme

(2015) 26 Stell LR 168

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consider the obligations that relate to sections and exclusive use areas

before examining the non-nancial obligations that relate to the common

property. The Sectional Titles Act 95 of 1986 (the “Act”) provides the broad

regulatory framework and sets the standards for owners’ behaviour. This

is complemented by the common law concept of nuisance.6 The day-to-day

management is, however, provided by the management and conduct rules,

which dictate more precisely what is expect ed from sectional owners living in

a particular sectional title scheme. Consequently, it is crucial for purchasers

buying units in a se ctional title scheme to carefully examine t he rules adopted

for the scheme.7 Although the prescribed management and conduct rules

regulate most schemes, the developer and s ectional owners have the ability to

amend the prescribed rules. This is done by introducing special rules, which

might impose additional behavioural obligations on owners with regard to

the use and enjoyment of their sections, exclusive use areas and the common

property.8

After an exam ination of the content and rationale of each of these obligations,

this contribution will conclude that these non-nancial obligations are essential

for preserving the physical integrity of the sectional title building and social

harmony in an i ntensied sect ional title community. The freedoms sacri ced

on account of these obligations are the pr ice to be paid for a physically intact

building and a contented a nd harmonious sectional title communit y.

2 Non-nancial obligations pertaining to sections and

exclusive use areas

2 1 Introduction

In addition to the various statutory limitations on ownership in general,

sectional owners’ use and enjoyment of their se ctions and exclusive use areas

are limited by several non-nancial obligations impos ed by the Act.9 From

the outset it is important to note that these obligations are mandatory and

cannot be excluded in terms of the rules of the sectional title scheme.10 In

addition to the obligations imposed by the Act, the prescribed management

and conduct rules also impose furthe r non-nancial obligations burdening the

use of sections and exclusive use areas.

In what follows the obligations that aim to preser ve the physical features of

the building; the maintenance of the harmonious appearance of the scheme;

and the social coherence and ha rmony in the scheme are grouped together. In

conclusion, the principles pert aining to the keeping of pets will be exami ned.

6 GJ Pienaar Se ctional Titles and o ther Fragmented Pr operty Schem es (2010) 233

7 M Constas & K Bleijs De mystifying Se ctional Title (20 04) 51

8 Ss 35(2)(a) and (b) of the Act; Ss 10(2)(a) and (b) of the Sectional Titles Sche mes Management Act 8 of

2011

9 PJ Badenhorst, J M Pienaar & H Most ert Silberberg and Schoeman’sThe Law of Property 5 ed (20 06) 477

10Van der Merwe Sec tional Titles 8 -7

THE IMPOSITION OF NON-FINANCIAL OBLIGATIONS 169

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