One of the owners want to include their balcony in the floor area of their section seeing that all the other balconies in the scheme is included. The Trustees feel that the owner should purchase the area from the Body Corporate as it is currently part of the common property and the attorney involved suggested that they follow the procedures in PMR 29 (2) for the enclosure
As per previous Questions we had there are two things involved here.
PMR 29 talks about improvements to the common property by the Body Corporate – clearly this is not what is being done here.
PMR 29.
(1) The body corporate may on the authority of a unanimous resolution make alterations or
improvements to the common property that is not reasonably necessary.
(2) The body corporate may propose to make alterations or improvements to the common property that are reasonably necessary; provided that no such proposal may be implemented until all members are given at least 30 days written notice with details of —
- the estimated costs associated with the proposed alterations or improvements;
- details of how the body corporate intends to meet the costs, including details of any special contributions or loans by the body corporate that will be required for this purpose; and
- a motivation for the proposal including drawings of the proposed alterations or improvements showing their effect and a motivation of the need for them;
and if during this notice period any member in writing to the body corporate requests a general meeting to discuss the proposal, the proposal must not be implemented unless it is approved, with or without amendment, by a special resolution adopted at a general meeting.
When you want to enclose a balcony that is common property or just add the balcony area to your section then we need to look at the Sectional Titles Act
Section 24
(3) If an owner of a section proposes to extend the boundaries or floor area of his or her section, he or she shall if authorized in terms of Section 5(1)(h) of the Sectional Title Schemes Management Act, Act 8 of 2011, cause the land surveyor or architect concerned to submit a draft sectional plan of the extension to the Surveyor-General for approval.
(Sub-s (3) substituted by s 17(b) of Act No 44 of 1997 and by s 5(a) of Act No 29 of 2003 and amended by Section 19 of the Sectional Title Schemes Management Act, Act 8 of 2011)
Section 5(1)(h) of the STSM states the following:
- (1) In addition to the body corporate’s main functions and powers under sections 3 and 4, the body corporate—
- must, on application by an owner and upon special resolution by the owners, approve the extension of boundaries or floor area of a section in terms of the Sectional Titles Act; and
It is also not uncommon to ask the owner to pay for the portion of the common property that they will be extending the section onto. The Trustees will have to propose a market related price.
So what the Trustees need to do is to call a general meeting by the Body Corporate to get the necessary special resolution passed for the extension and to get the owners to agree to the purchase price.
The owner will then have to get a Land Surveyor or Architect to amend the sectional plans to get this approved by the Surveyor General and registered at the Deeds Office – the participation quotas of all sections will be affected as we have seen in the Question about Extension of a Section.