Installing solar panels or a solar heating system on the roof of a full title house generally will not have any legal bearing on you as a property owner, however, this is not the case for sectional titles.

Lauren Squier of Schindlers Attorneys, explains:  “The majority of schemes have special rules in place to promote uniformity within the scheme itself, often which do not permit any deviation that will create aesthetic contrast between the exteriors of units  – such as the different aesthetic effects that different kinds of solar panels might have,” she said.

“Any deviation which is not permitted could warrant the imposition of a fine and could likewise be followed with a request or demand for the panels and/or equipment used to be removed from the property.”

Therefore a body corporate would be justified in obtaining an enforcement order from the Community Schemes Ombud (CSOS) or a court compelling the removal of offending solar panels/equipment, at the cost of the owner, she said.

Owners should check with their trustees/managing agents before purchasing any renewable/green energy products that need to be installed outside of their units what the procedure is. This also includes what the aesthetic guidelines are for such units/equipment.

Damage to common property

According to Squier, the Conduct and Management Rules’ are specifically put in place to provide for the regulation, management, administration, use and/or enjoyment of sections and common property in sectional title schemes.

Of special importance here are the Conduct rules as envisaged in Section 10 (2) (b) of the Sectional Title Schemes Management Act, she said.

“In terms of PMR 4 of the Prescribed Conduct Rules, a party to a scheme may not without the written consent of the relevant trustees erect anything on the structure forming part of the common property, which in doing so will cause damage to that common property.

“Sectional title schemes comprise of common property, owners’ units and exclusive use areas and are managed by the trustees on behalf of a body corporate.

“The outer part of the roof of a section is defined as common property and is regulated by the trustees of the body corporate.

“The roof is not part of the section that the owner buys and is not ‘private property’ in the conventional sense the way the roof of a freehold property would be.”

From a practical perspective, there is no doubt that fixing solar panels or a solar heating system to the roof of a sectional title unit will inevitably cause some damage, even if this is mitigated to only drilling into the roof of the property to fasten the bracket which is going to keep the panels in place, said Squier.

An owner fixing solar panels or a solar heating system to the roof of a sectional title unit without consent from the trustees will thus be in breach of PMR 4, she said.

“Even if the owner concerned obtains the requisite consent, section 13 of the Act places the onus on him/her to keep the objects in good order and repair.

“PMR 5 states further that an owner or occupier should refrain from making any external changes to the common property without the required consent, where such changes would detract from the appearance of the common property.

“This again, reintegrates the idea of uniformity,” she said.

Fines

In some schemes, depending on how the rules have been created, fines can be levied against members for non-compliance, Squier warned.

Typical examples include the installation of solar panels and solar water heating systems on the exterior of a section (which is common property) without the prior permission of the trustees, she said.

“One should bear in mind, however, that the owner in transgression of the conduct rule in question be warned in writing of the transgression and provided an opportunity within which to remedy same.

“Should the owner still fail to remedy their non-compliance, the trustees must apply their mind to the situation and only once this has been done can a fine be implemented.

“In schemes where the conduct rules do not provide for fining, the legal standpoint is that fines simply cannot be implemented, and we suggest that if this practice is occurring that the owner refers the matter to the CSOS,” the legal expert said.

Source: BusinessTech

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