In a sectional title scheme without an active body corporate, can one owner require another owner to contribute toward waterproofing costs based on participation quota, even if the water damage only affects one unit?
ELA
EstateIQ Legislative Assistant
This question raises two important issues: (1) whether PQ-based contributions can be enforced in a scheme without active governance, and (2) whether owners are liable for waterproofing costs that only affect another owner's section. Here's a breakdown:
🧾 Does a Body Corporate Exist, Even Without Meetings or Levies?
Yes. According to Section 2(1) of the STSMA, a body corporate is automatically established on the date any person other than the developer becomes an owner. The body corporate exists from that moment, regardless of whether it has been registered or is operational.
The absence of meetings, levy contributions, or a governance structure does not negate the legal existence of the body corporate.
💰 Can the Participation Quota (PQ) Be Used to Enforce Cost Contributions?
In a validly functioning body corporate, cost contributions for repairs to common property must be levied in proportion to each owner's PQ, as stated in Section 3(1)(f) of the Act and Section 11(1)(c).
However:
- These levies must be properly raised via a trustee resolution or general meeting.
- Without such a resolution or governance process, costs cannot be unilaterally enforced.
So, while PQ does define the cost-sharing ratio in principle, one owner cannot enforce a PQ-based contribution unless the body corporate has formally adopted that cost.
🛠️ Are You Liable for Waterproofing That Affects Only Another Owner's Unit?
No, not automatically. Here's why:
Under Section 13(1)(b) of the Act, each owner must carry out work in respect of their own section, except where the work benefits the building generally.
- If the waterproofing relates only to one unit and does not involve common property or shared infrastructure, it is likely a private obligation.
- If the issue stems from known pre-existing defects at the time of purchase, it would typically be that owner's responsibility, not that of the body corporate or fellow owners.
🌊 Additional Consideration
If the water ingress is due to external environmental conditions and it's proven to impact common property foundations or shared infrastructure, it might justify collective funding.
But even then:
- It must be shown to benefit or protect the common property;
- Any contribution must be authorised by a formal body corporate resolution.
🔧 Suggested Actions
- Convene a general meeting to regularise your body corporate (Section 6(1));
- Appoint trustees, adopt a budget, and determine if waterproofing affects common property;
- If deadlocked, either owner may approach the CSOS (Community Schemes Ombud Service) for a ruling.
Conclusion
Owners are not automatically liable for costs based on PQ unless:
- The work is proven necessary for the common property, and
- It is properly authorised by a functioning body corporate through a resolution.
Otherwise, the responsibility likely rests with the owner of the affected section.
ELL
EstateIQ Legal Lookup
📘 Legislative References
STSMA Section 2(1)
With effect from the date on which any person other than the developer becomes an owner of a unit in a scheme, there shall be deemed to be established for that scheme a body corporate of which the developer and such person are members, and any person who thereafter becomes an owner of a unit in that scheme is a member of that body corporate.
STSMA Section 3(1)(f)
to raise the amounts so determined by levying contributions on the owners in proportion to the quotas of their respective sections;
STSMA Section 11(1)(c)
subject to section 3(1)(b), the proportion in which the owner of the section must make contributions for the purposes of section 3(1)(a) or may in terms of section 14(1) be held liable for the payment of a judgment debt of the body corporate of which he or she is a member.
STSMA Section 13(1)(b)
forthwith carry out all work that may be ordered by any competent authority in respect of his or her section, other than such work as may be required for the benefit of the building generally, and pay all charges, expenses and assessments that may be payable in respect of his or her section;