1
Lecture 3
Will definitely get a question on the legislation stuff handed out to us in
this lecture
POWER OF USE WITH REGARD TO THE SECTION
AND COMMON PROPERTY
I. POWER OF USE WITH REGARD TO SECTION
[LAWSA360-366] NB most (not all) STA sections re-enacted in
STSMA
STA s 2(b): separate ownership
- This means that you can do as you like and as you please with your
section
- Ownership is the most extensive power you can have over
something
- you can do the following: Usus, fructus (use the fruits), abusus, ius
disponendi (right to alienate), ius negandi (can deny someone
entry), ius vindicandi (can use the rei vindication to claim your thing
is something occupies it)
BUT Limitations on ownership of section
1. Common law: nuisance (abuse of rights)
a. Nuisance is the law of the senses
b. It concerns your quality of life
c. And this cannot be infringed by:
i. Noise
ii. Smells
iii. Smoke
iv. Unsightly views
v. More than neighbour is expected to tolerate
d. If you can prove damage and fault can get an interdict or
claim damages
e. This is taken seriously because of an intensified community;
stricter application; quality of life
f. If someone has a sole intention to injure or causes abnormal
inconvenience even more serious
B. Sectional Titles Act: Implied servitudes (STA s 28)
STA s 28(1) subjacent & lateral support & passage.
- You cannot do something that will take away the support from the
person in front of you
- Cannot take away the lateral support of the outside of the wall either
(that is part of the CP) eg. Making a hole in the wall to put your
statue
STA s 28 (2)(a): deemed incorporated in title deeds
- This is taken to be assumed in the title deeds
STA s 28(2)(b): body corporate has access reasonable hrs: maintain, repair, renew.
- If there is damage or something, the BC can come in during reasonable
hours and fix it
C. Sectional Titles Schemes Management Act
Duties of owners (STSMA s 13(1)):
, 2
(a) Person with written authorization, reasonable hours, notice:
maintain & repair + inspecting rules observed
(b) carry out all work required by the local auth. +pay all charges etc
(c) there is a positive duty on the owner to repair & maintain the
section in state of good repair
Eg. No duty on the owner of a plot of land… but the owner of
the section must do this
(e) may not use or permit use in a manner which may cause a
nuisance
(g) may not use for another purpose other than what is intended by
the sectional plan
Unless all owners consent
What about paraplegics? may run a home industry
STSMA s 13(2)(a)(b): if the refusal is unfairly prejudicial, unjust or
inequitable can make an application to the Ombud within six weeks
- Factors that must be considered by the ombud:
o Type of scheme,
o security,
o privacy,
o personal circumstances,
o without prior consultation,
o weight of opposition to converted use
- Cujè-Jakoby & An. v Kaschub & An. 2007 3 SA 345 (C)
o Owned 5 unites in somerset west
o Mostly have people from overseas for 6 months
o they tried to rent our their apartments in the other periods
o The owners of the block had an in house cleaning, ironing
service
o Converted a garage into a room to do this
o One lady said she doesn’t like this & refused to consent
o Plaintiffs applied to the court (Nowadays its th eombud) to
illustrate that your refusal is unfair, prejudicial, unjust or
inequitable
o Judge said that these words only mean unreasonable
o If you look at these factors:
Type of scheme – helped the residents
Did not affect security because the people lived there
Didn’t affect privacy – didn’t cause many people to walk
around it all the time
Personal circumstances
There was prior consultation
o court decided it was unreasonable
- Bonthuys & Others v Scheepers CA 303/2006 StGuide78-79
o Was an ordinary ST scheme
o There was one mother with a small child
o She lost her job as a hairdresser and decided to convert her
sitting room into a hair salon
o 13 of the owners refused her to do this
o She got the consent of the trustees, but in court they said that
she should have applied to get the consent
o Mag court said she could do it
Lecture 3
Will definitely get a question on the legislation stuff handed out to us in
this lecture
POWER OF USE WITH REGARD TO THE SECTION
AND COMMON PROPERTY
I. POWER OF USE WITH REGARD TO SECTION
[LAWSA360-366] NB most (not all) STA sections re-enacted in
STSMA
STA s 2(b): separate ownership
- This means that you can do as you like and as you please with your
section
- Ownership is the most extensive power you can have over
something
- you can do the following: Usus, fructus (use the fruits), abusus, ius
disponendi (right to alienate), ius negandi (can deny someone
entry), ius vindicandi (can use the rei vindication to claim your thing
is something occupies it)
BUT Limitations on ownership of section
1. Common law: nuisance (abuse of rights)
a. Nuisance is the law of the senses
b. It concerns your quality of life
c. And this cannot be infringed by:
i. Noise
ii. Smells
iii. Smoke
iv. Unsightly views
v. More than neighbour is expected to tolerate
d. If you can prove damage and fault can get an interdict or
claim damages
e. This is taken seriously because of an intensified community;
stricter application; quality of life
f. If someone has a sole intention to injure or causes abnormal
inconvenience even more serious
B. Sectional Titles Act: Implied servitudes (STA s 28)
STA s 28(1) subjacent & lateral support & passage.
- You cannot do something that will take away the support from the
person in front of you
- Cannot take away the lateral support of the outside of the wall either
(that is part of the CP) eg. Making a hole in the wall to put your
statue
STA s 28 (2)(a): deemed incorporated in title deeds
- This is taken to be assumed in the title deeds
STA s 28(2)(b): body corporate has access reasonable hrs: maintain, repair, renew.
- If there is damage or something, the BC can come in during reasonable
hours and fix it
C. Sectional Titles Schemes Management Act
Duties of owners (STSMA s 13(1)):
, 2
(a) Person with written authorization, reasonable hours, notice:
maintain & repair + inspecting rules observed
(b) carry out all work required by the local auth. +pay all charges etc
(c) there is a positive duty on the owner to repair & maintain the
section in state of good repair
Eg. No duty on the owner of a plot of land… but the owner of
the section must do this
(e) may not use or permit use in a manner which may cause a
nuisance
(g) may not use for another purpose other than what is intended by
the sectional plan
Unless all owners consent
What about paraplegics? may run a home industry
STSMA s 13(2)(a)(b): if the refusal is unfairly prejudicial, unjust or
inequitable can make an application to the Ombud within six weeks
- Factors that must be considered by the ombud:
o Type of scheme,
o security,
o privacy,
o personal circumstances,
o without prior consultation,
o weight of opposition to converted use
- Cujè-Jakoby & An. v Kaschub & An. 2007 3 SA 345 (C)
o Owned 5 unites in somerset west
o Mostly have people from overseas for 6 months
o they tried to rent our their apartments in the other periods
o The owners of the block had an in house cleaning, ironing
service
o Converted a garage into a room to do this
o One lady said she doesn’t like this & refused to consent
o Plaintiffs applied to the court (Nowadays its th eombud) to
illustrate that your refusal is unfair, prejudicial, unjust or
inequitable
o Judge said that these words only mean unreasonable
o If you look at these factors:
Type of scheme – helped the residents
Did not affect security because the people lived there
Didn’t affect privacy – didn’t cause many people to walk
around it all the time
Personal circumstances
There was prior consultation
o court decided it was unreasonable
- Bonthuys & Others v Scheepers CA 303/2006 StGuide78-79
o Was an ordinary ST scheme
o There was one mother with a small child
o She lost her job as a hairdresser and decided to convert her
sitting room into a hair salon
o 13 of the owners refused her to do this
o She got the consent of the trustees, but in court they said that
she should have applied to get the consent
o Mag court said she could do it
