Legal Talk: Winter maintenance in community schemes
Hosted by Pippa Hudson on Cape Talk on 07 July 2025
For more information please contact us on 061 536 3138 or email us as info@tvdmconsultants.com.
Pippa speaks to Zerlinda van der Merwe of TVDM Consultants, as she answers all your questions around community schemes.
During the lunch time show on Cape Talk, Pippa Hudson and Zerlinda van der Merwe discussed WATER INGRESS as well as other problems during these winter months.
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00:01 - Speaker 1
Join the conversation you're with CapeTalk. Our focus switches to legal talk, and today we circle back to issues involving living in community settings, in a community scheme or sectional title environment. It's always a pleasure to have with us in studio Zerlinda van der Merwe of TVDM Consultants, and just a reminder, she has over two decades experience in this field, providing legal advice and training to the industry, including the Community Schemes Ombud Service itself. So if you have questions today around your rights and responsibilities and the limitations thereof if you are in a sectional title complex or some kind of community living environment, this is the day to call in and ask or to send a WhatsApp. Lovely to have you back with us, Zerlinda, Thanks so much, the great to be there and a good time to talk about things involving whether and the things that happen when it rains a lot in a short space of time. Yeah, especially on a day like this, a week like this. In fact, our very first listener question is to do with leaking water. But let's just take a step back before we dive into specifics, I mean water ingress you in a communal environment, if you're living, for example, in a block of flats or townhouses where you share a wall, what happens in somebody else's house might quite drastically impact yours through no fault of your own. I mean, let's start there. So it's good that you use the word fault.
01:26 - Speaker 2
So a lot of the time it is a no fault situation, and you know it's a it's a weather issue, or it is maybe some maintenance it wasn't undertaken because it wasn't planned for that specific point in time. I mean, we can budget and we can plan as much as we want, but whether or not it's actually going to take place at that schedule time is a whole different story. And then there's accidents. You know, accidents happen, maybe a burst geezer or a burst pipe or something along those lines. So very often there isn't any fault associated with it. But if you're in a community scheme and something like that, it does happen. Unfortunately, you do have to take some responsibility even if you are not at fault.
So a lot of the time it is a no fault situation, and you know it's a it's a weather issue, or it is maybe some maintenance it wasn't undertaken because it wasn't planned for that specific point in time. I mean, we can budget and we can plan as much as we want, but whether or not it's actually going to take place at that schedule time is a whole different story. And then there's accidents. You know, accidents happen, maybe a burst geyser or a burst pipe or something along those lines. So very often there isn't any fault associated with it. But if you're in a community scheme and something like that, it does happen. Unfortunately, you do have to take some responsibility even if you are not at fault.
02:00 - Speaker 1
So responsibility for damage caused to somebody else's home. Even if it wasn't through your own your own negligence or anything like that, you still are liable to some extent. Well, let's maybe then go to our first question, because this is exactly what happened to our listener, Giuseppe, who wrote in to say that his on suite bathroom was recently flooded because of a leak upstairs. The upstairs owner had an issue. He doesn't say what the nature of that, the source of the leak was, but the leak came down and impacted his ensuite bathroom, and his comment was that insurance don't want to pay for some of the damage like swollen wood paneling. What do I do? Who do I claim from? Can I go to the body corporate? Do I sue the owner above me?
02:40 - Speaker 2
Difficult one, It is a very difficult one. So, I mean, water is a funny thing, and you know, the owner that is impacted is normally the one that knows about it before the one that is causing the damages, whether or not the fault. So if my you know, shower is leaking, or some pipe or my fitting at my washing machine, you know, the resultant damage is not going to come into my apartment, it's going to happen to a unit some where below me. So the owner that is affected is normally the one that draws it to somebody else's attention. Generally speaking, they draw it to the body corporate's attention because they don't normally know the details of the person that is living around them, or they're not sure where it's coming from. But if they are able to determine that it is most certainly nearly coming from a specific section, their claim would be from that section owner. And then we start talking about access and who's responsible, and is there a tenant, is it going to affect the rental, you know, people needing to move out, alternative accommodation, loss of rent, all those fun things. Ultimately, if there's no common property involved, then the claim is not against the body corporate. It's against the owner of the unit above and the turf them can either sort it out themselves, which unfortunately is very rare, or they can make an application to the Community Schemes Ombud Service or even go the court roots for a damage's claim, and then the whole determination of fault comes into play.
03:52 - Speaker 1
Okay, so first try and deal with it directly, with the person who owns that unit where it happened.
03:57 - Speaker 2
And then maybe just to touch on that quickly, when you are needing to get hold of another neighbouring owner, you know, very often they're not living there, there's a tenant there, the apartment is vacant. They might not know who that person is. They can contact the body corporates for the details of that person. And then we have the lovely provision off POPI that says that information has to be a given when there is a lawful purpose. So I believe that in this specific situation, they would be a lawful purpose. The Information regulator and community schemes Ombud Service view is that you would need to give the person that is requesting the contact details. You would need to get their right to share their details with the person that they're wanting to talk to. It's a bit of a like a backward situation. And then of course you have the situation where the person above is not wanting to talk to the person below, and that's where the fights, unfortunately come in.
04:44 - Speaker 1
Okay, that's a similar situation to how we deal with it. If somebody emails me saying I'd like to contact that guest you had on. Our approach is to say I will send your details to the guest, letting them know that you want to connect with them. So that's the same way you should do it. In this case, she'd do it as well.
05:00 - Speaker 2
So you must get the person's rather give the person requesting information to the person that they're wanting to talk to and leave it up to that person to contact them. But then, unfortunately, in a sectional title situation, when those people are not able to connect or the one doesn't want to talk to the other one, the body corporate very often gets involved, especially if multiple sections or the common property is going to be effected. Again, water can actually permeate into multiple sections or it can actually damage the common property as well, so the body corporate sometimes does have to get involved.
05:28 - Speaker 1
Yeah, okay, if you've got questions around this, you're very welcome to do what Melanie's done and send a WhatsApp. This is around water usage rather than water damage. But Melanie or Menani asks if an owner is sent an account from the body corporate with water usage of the unit and the pro rata communal water and meter charge. What portion of this is the tenant liable for?
05:58 - Speaker 2
So again you have to look at the agreement that's in place. So the lease agreement, normally any consumption charges is going to be the responsibility of the tenant to pay the landlord. But generally it is consumption for that specific unit. So it's not normally the case where the tenant pays for body corporate expenses. So the levies, the rates, the portion of the owner's responsibility towards common property expenditure like water electricity. If it is in the agreement that there is a responsibility on the tenant, then the tenant can be held liable for that, but it's not the norm.
06:28 - Speaker 1
Okay, thanks for that, Melanie. I hope that's helpful. So your own lease agreement is the starting point to go and check as to what it.
06:35 - Speaker 2
Otherwise just the individual consumption of the tenant.
06:37 - Speaker 1
Your own individual consumption. Okay, thank you. Right, we've got a caller on the line. I believe it's Stead who has a question or a comment for you. Good afternoon, and welcome to Cape Talk. Steve, what's your question?
07:02 - Speaker 3
Have a string of units in a sectional title and the ground below a particular unit is disappearing. Who does that responsibility fall under?
07:15 - Speaker 1
Zerlinda do you need any more information?
07:19 - Speaker 2
So you have to look at the nature of the area. So if it's an exclusive use area, the owner would be responsible. If it's common property, the body corporate. If it's the medium line between the section and the common property, that would be the body corporate’s responsibility.
07:33 - Speaker 3
Okay, I understand that, thank you very much. But this is the ground directly below a particular unit, so it's ground, but it's under the unit. It's not like a pavement or a road, or a servitude or anything like. It's under the unit itself.
07:51 - Speaker 2
So it sounds like a bit of rising damp or something along those lines, water levels and all that.
07:58 - Speaker 3
It's more in the substance and land slope situation.
08:02 - Speaker 2
Yeah, you should have insurance for that, and that would be a Body corporate insurance item. You can take a look at that. But if we're looking if we're looking at the median line between the section and common property, the body corporate would be responsible. Perhaps it's a foundation issue, but you also have to look at your body corporate rules.
08:17 - Speaker 3
Yeah, that is on its way that it's just the responsibility of the ground. I don't believe that it can be a unit owner that could be responsible for underneath.
08:28 - Speaker 2
Yeah, it all depends on the nature of the scheme and the nature of the problem.
08:33 - Speaker 3
Okay, all right, that's that's fine.
08:36 - Speaker 1
Thanks so much Steve for your call. Zerlinda van der Merwe with us tackling your questions around community scheme living and sectional title, a lot of them having a theme around water today. The next question on WhatsApp is as well from Lizanne, but just to say it doesn't have to be restricted to water related and water damage questions. You can phone in on other issues as well. Lizanne has got leakage in the underground parking and says my car was water damaged. Am I right in thinking it's the body corporate's responsibility to fix the damage to my car.
09:13 - Speaker 2
So, just like a Steve's question, you first have to determine the nature of this parking area. Normally, basement parking is common property. Perhaps there's exclusive use rights that've been allocated. If the parking bay is an exclusive use area and the sectional plans or the rules don't demarcate the boundaries of it, it would be the owner's responsibility to actually maintain that exclusive use area. If it's a section or common property, it would be the body corporate’s responsibility and then the same issue as we initially spoke about the written question that came in the issue about resultant damages would either need to be an insurance risk. Alternatively, there could be a potential came against the owner of the property that has caused the damages, which might sometimes be the body corporates
09:53 - Speaker 1
Yeah, okay, so Lizanne. It will obviously depend on whether that was your owned parking slot that you were parked in or general communal parking area.
10:01 - Speaker 2
And I think that's a bit of a theme that goes through sectional title. It's always a question of you know, what is the location, what is the legal nature of the location, because even if there is a leak or water ingress coming from somewhere else. You have to look at what is the nature of the area that is being affected to determine the liability and responsibility.
10:17 - Speaker 1
Is it your personally owned part of it or the broader communal section. Okay, so Lizanne, I hope that at least points you in the right direction and getting that one solved. Before we go to our next question. I saw the most extraordinary exchange on Facebook a week or two ago, and Zerlinda, I've been thinking about asking you about it now we're talking about rain and water related issues. It was a really vitriolic argument over access to the washing line in a communal scheme environment, I think it was a sectional title townhouse complex with shared washing lines outside and neighbours almost coming to blows and getting really vitriolic in their responses and kind of retaliating against one another, and taking laundry off the line and dumping it in the dirt deliberately because they felt aggrieved that somebody was using more than their fair share of the space on the laundry line. In weather like this, nobody's got access to the outside laundry line because everything's going to stay damp. But I mean, do you want to just talk a little bit to that issue. I mean, if you are sharing the laundry line, you would think it would be, you know, share it respectfully. Do you allocate a certain percentage of meters of line per flat? What's the best way to deal with it?
11:28 - Speaker 2
This is actually such a good one because a lot of community schemes have these shared areas, and normally they're not big enough to actually cater for everybody's needs. In weather like this, the moment the sun comes out, everyone's a quickly doing laundry. You know, it's out on the balconies and over the balustrades and on common property in all sorts. So you know you should be respectful. You should go and check on your laundry to make sure that it's drying. You should once it's dry, remove it, folded up, take it away. You could even have a rule in place that says, if you're using the washing lines or even washing machines and tumble dryers, that if somebody's items have been dried or adequately, that you actually take it off and neatly folded and put it away. Not that everyone wants to touch everyone else's unmentionable. So there's even rules that says what type of laundry you can actually hang out on the line as well. But we know, you know, generally speaking, people are going to hang something out, they're going to go out, they're going to go to work, they're going to come back later, they're going to forget, it's going to start raining, they're going to leave it for a couple of days. So it really isn't a fair situation, but you have rules in place to actually regulate that. The same with washing machines and tumble dryers and switching it off midway through cycle and all sorts of weird things can happen.
12:34 - Speaker 1
I experienced that in varsity res, more years ago, then i'd care to say, but it's a good place to learn that the art of sharing these spaces and not resort to petty, vindictive acts of vengeance if you felt your neighbour left their laundry out too long, a simple conversation might be a better way of sharing, right. I don't think we're going to have time to address Gertrude's question who called in. So if I may ask my producer just to call Gertrude back and take her number and then the next time we've got Zerlinda with us, we can try and get a resolution for her. But just a quick note of thanks sent from Lizanne saying thank you so much for the advice. She greatly appreciates it. Okay, The last one is let's move away. It's not a water related issue, but it is one that has come up before and I know is a point of contention for many people. Anonymous rights. I have such a problem with the tenant below me who smokes cannabis excessively. The fumes make their way into my flat above, and I do not consider it fair. They are allowed to smoke on their own balcony, but do I have any right to prevent them from that smoke reaching me?
13:36 - Speaker 2
Yeah, it's again a difficult one. So any type of nuisance has to be dealt on a reasonable basis. So it's not only cannabis. It can be cigarette smoke, it can be incense, you know, candles, food, all sorts of fun things. You cannot be a sensitive person when you make a complaint, so you know, don't go and leave all of your windows open and almost inhale what your neighbour's doing, so there is a little bit of give and take. You know, maybe if the neighbour only smokes every now and then, make sure that your windows and doors are closed to that particular point in time. Speak to the offending tenant or owner, maybe the landlord or the rental agent to ask them to potentially smoke within their apartments. And it's an interesting one. People that smoke cannabis or cigarettes, they love to smoke outside of their apartments. They don't like the smell in their own apartments, which then makes life difficult for for everyone else. Yes, yes, I'm generalising. Yeah, so definitely speak to the person. If it's something that is happening all the time, you know, all hours of the day and night, you feel trapped in your own apartment, that wouldn't be reasonable. If you don't have any joy speaking to the occupier or the owner, you can reach out to the body corporate, the trustees, because if you're being affected by this, the likelihood is that it's affecting somebody else, especially if they're smoking on an unenclosed area where the fumes can go elsewhere. Also depends on the where the wind is blowing. Sometimes I had a neighbour that every now and then I smelt some cigar smoke, but it was just how the wind blew and if I left my starting door open for too long or something along those lines. But don't be sensitive, be reasonable and talk to the other person before you go to the body corporate.
15:12 - Speaker 1
Of course, if we could pinpoint what other various people regard as reasonable, it's not the same for everybody is part of the problem, but I think point taken and point well made that one has to allow a little bit of give and take and leeway if you are living in a communal environment, because you've chosen to live in a communal environment, that comes with some degree of tolerance for the other people in that community spot and their habits. Yeah, Zerlinda, thanks as always hugely helpful to our listeners. If somebody listening to this is facing a really dire situation where they need professional legal help from somebody like you, how do they get in touch with you privately?
15:46 - Speaker 2
Yeah, they're more than welcome to pop us a mail, so they can contact info@tvdmconsultants.com. You can check out our website www.tvdmconsultants.com. All of our details are there and we offer as short as a ten minute quick telephonic consultation or zoom, or face to face meeting attendance, all those fun things.
16:06 - Speaker 1
And a much more in depth one if the problem is a really serious one, of course, but let's hope it doesn't get to that point. So Zerlinda, always lovely to chat to you, and we'll do so again in a couple of weeks.