Your assistance in the following would be appreciated: We are unit owners in a sectional title complex of 30 units of which 10 units face a very busy road where we have experienced many accidents over the years some with disastrous consequences. Our unit is one of the units facing this road. There is a pre-cast perimeter fence on the boundary of our exclusive use area facing this road. Despite being a busy road as far as traffic is concerned we also have numerous pedestrians walking down to the railway station. Due to the security issues, the trustees many years ago planted a bougainvillea on the road side as an additional security measure. This was planted over 15 years ago and has reached a height more than 2m. This hedge is trimmed regularly by the gardener to keep it in tact. Ten days ago, we had another motor vehicle accident right outside our unit, removing half of the bougainvillea plant which was indeed my security and damaging the entire pre-cast fence in front of our unit. The Trustees submitted an insurance claim and the wall was repaired, however, the contractor had to remove the entire bougainvillea in front of the entire wall at my unit to proceed with the repair. Despite the wall being repaired, my security and privacy are still severely compromised as the bougainvillea is gone. All my garden furniture and equipment is still inside my unit as if I leave it outside, it will surely be gone tomorrow. I have asked permission from the Trustees to add an additional galvanised iron fence at my expense inside my exclusive use area. I have 76% agreement in writing from the rest of the owners to proceed and I have consulted with the local building inspectorate regarding the municipal legal requirements which I will meet. I have received a letter from the Trustees consisting of only 20% of the Body Corporate stating that they are denying me permission to proceed with the measures I intend taking and agreed to by 76% of the Body Corporate to provide the necessary security for my family and property as well as restoring my privacy to the status quo as enjoyed by the rest of the residents of the complex. Please advise what my rights are firstly, as far as being able to provide security to my family and property which is my number one priority, and secondly, the fact that I personally discussed my predicament and possible solution with 23 owners (76%) of the Body Corporate who gave me their written consent to proceed? Just for the record, the Body Corporate held a Special Meeting less than a year ago to discuss the maintenance of the very same wall as it is tilting towards the road. A decision was made at this meeting not to do anything about the wall as the security and privacy of the units concerned will be severely compromised. Your assistance would be highly appreciated.
This matter is dictated by the sectional title act, outlining the process where any improvement to common property is outlined. The management rules distinguish between ‘luxurious’ and ‘non-luxurious’ improvements. They contain no guidelines as to what is to be considered a luxury and what is not, but it is suggested that any improvement that is useful and necessary is non-luxurious and any improvement that is desirable but not necessary is luxurious. In this situation you would probably get away with non-luxurious. It does however remain the prerogative of the trustees to agree to this as it would be budget dependant. If trustees wish to effect non-luxurious improvements to the common property they must give written notice to all owners. The notice must indicate the intention to proceed with the improvement after a stated date not less than thirty days from the date of posting and provide details of the proposed improvements. The details must include the costs of the proposed improvements, how they are to be financed, the estimated effect on levies and the need, desirability and effect of the improvements. On receipt of notice from the trustees, any owner may, in accordance with the provisions dealt with in 10.16.5, request that the trustees convene a special general meeting to deliberate upon the proposals. At this meeting owners may by special resolution approve the trustees’ proposal with or without amendments. If you feel that the trustees are not acting correctly herein, your recourse would be to request a general meeting of owners in terms of management rule 53 of the ST Act where you request the trustees in writing to schedule a special general meeting in terms of management rule 53 of the ST Act. For this you require permission of owners (in writing) entitled to 25 per cent of the total of the quotas of all sections or by any mortgagee holding mortgage bonds over not less than 25 per cent in number of the units. , convene a special general meeting. If the trustees fail to call a meeting so requested within fourteen days of the request, the owners or mortgagee concerned shall be entitled themselves to call the meeting. You can then table the matter for owners to discuss the merits herein and a special resolution to be taken in respect hereof.