I am in a predicament where alterations where done to my property without any consent from the Trustees. I am in the process of selling the property and now need to provide plans only to discover that the plans are missing “non existent” this has now cost me to draft up plans for the unit to show the alterations made. When the architect submitted the plans to the council we where told that an engineer needs to go out to the property and give his approval. This has now happened but still no approval… he has however come back to us and said that who ever built the extra portion on the property (kitchen) the just used home made roof trusses now we have to replace these trusses at our cost. Surly the trustees and Body corporate should also be accountable for the damages that we are now encoring

Hi Hilbertl

Your post is a bit vague as you don't state whether the alterations were done prior to you purchasing the unit or not. However, the following is relevant.

Should you have purchased the unit after the alterations were done, you may have a claim against the previous owner of the unit.

Section 24(3) of the Sectional Titles Act states:
“If an owner of a section proposes to extend the boundaries or floor area of his or her section, he or she shall with the approval of the body corporate, authorised by a special resolution of its members, cause the land surveyor or architect concerned to submit a draft sectional plan of extension to the Surveyor-General for approval.”

This section places the responsibility of requesting and obtaining the authorisation of the body corporate (in the form of a special resolution) and employing a land surveyor or architect to draft sectional plans and submit them to the Surveyor-General on the owner of the section.

As the owner is responsible for employing the services of a land surveyor or architect, the owner is responsible for the costs thereof.

There is a further requirement placed on the owner if the alteration will cause a deviation of 10% (previously 5%) in the participation quota of any section in the sectional title scheme. This requirement is to obtain the consent of the mortgagee of each section in the scheme.

Only after the requirements of Sectional Titles Act have been complied with, may the owner be able to submit building plans of the extension for approval by the local authority.

Any alterations required by the Surveyor-General or the local authority in approving the plans or the building should be borne by the owner who is extending their section.

A diligent purchaser of any property would require that the building plans amongst other documents are in order as a condition of the purchase of the property.

Section 40(3)(a) of the Sectional Titles Act states:
“A trustee of a body corporate whose mala fide or grossly negligent act or omission has breached any duty arising from his fiduciary relationship, shall be liable to the body corporate for--
i) any loss suffered as a result thereof by the body corporate; or
ii) any economic benefit derived by the trustee by reason thereof.”

This section of the Sectional Titles Act deals with the liability of the trustees.

The question would be whether the trustees were mala fide or grossly negligent in their failure to act and enforce Section 24 of the Sectional Titles Act. This would be a question better argued in an arbitration or court where all the facts were presented.

Would the body corporate (all the owners in a sectional title scheme) or the trustees be liable for the costs of replacing inferior quality materials used by an owner (or a contractor the owner appointed) with materials of an acceptable standard?

It is unlikely that the body corporate or the trustees would be held accountable for the quality of the materials used by an owner or their contractor.

Annexure 8 (Management Rule) 68(1)(iii) states:
“In addition to his obligations in terms of section 44 of the Act, an owner shall not make alterations which are likely to impair the stability of the building or the use and enjoyment of other sections, the common property or any exclusive use area;”

This rule places the restriction on the owner to ensure that alterations which they make does not impair the stability of the building.

It appears that the owner who altered the unit is liable for the costs and not the body corporate nor the trustees to repair the alterations which an owner undertakes.

I’d assume that the authorisation from the body corporate has not yet been obtained for the alterations, and if not obtained, the body corporate may force the owner of the section to revert the section to its original state as per the registered sectional and building plans.