“In our sectional title scheme, I’ve heard that one of the unit owners is busy planning to convert her garage into a hair salon and then park her car in the public parking area. I’m not happy with this at all as not only will it increase unknown persons in the complex, it will also reduce the already limited public parking spaces we have. Surely she cannot just go ahead and change her garage?”
Sectional title schemes are essentially communities who have joined together with a specific intent. Any change to basic nature of the scheme may therefore defeat the purpose of the scheme, unless such a change is consented to by all.
This position was confirmed in the recent court case of Mineur V Baydunes Body Corporate and Others where in a quite similar set of facts the question was raised whether a sectional title owner could convert their garage into a residential space.
In assessing the legal position, the court looked at Section 13(1)(g) of the Sectional Titles Schemes Management Act 8 of 2011 which clearly states that “when the purpose for which a section or exclusive use area is intended to be used is shown expressly or by implication on or by registered sectional plan, an owner must not use nor permit such section or exclusive use area to be used for any other purpose than indicated on the sectional plan. The only instance in which an owner may use his unit for another purpose as indicated on the sectional plan is if the written consent of all owners is obtained that such section or exclusive use area may be used for the purpose as consented to”. [our emphasis]
Accordingly, the court found that the objection of one unit-owner in the sectional scheme to the conversion of garages into residential spaces was enough to the render the resolution taken by the majority of the unit owners in the sectional scheme as unlawful and invalid. The conversion of garages into residential spaces did not only impact the unit owner but the entire sectional title scheme as it created a lack of parking for vehicles in an already confined area. Additionally, the building plans of every sectional title scheme must meet certain parking requirements imposed by the Local Municipality to ensure safety and convenience for the residents in the scheme.
However, it does not mean that a unit owner will never be able to make alterations to their unit. Basic alterations can usually be dealt with by the rules of the scheme and be approved by the body corporate. But for changes where the nature of the unit or scheme is changed, it will be important to obtain the consent of all the members of the sectional title scheme by showing that your alteration will not impact the common property in the sectional title.
In your case, it does appear that the conversion of the garage into a hair salon could impact on the other unit owners, community and the common property of the scheme. Our recommendation is to discuss your concerns with the body corporate so that they can address this with the relevant unit owner in the light of the above-mentioned court case. Should they fail to do this or the unit owner continues in any event with the conversion, consider approaching your attorney for assistance.
Source: Seymore du Toit & Basson Inc.