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After the infamous 3 Ps - pets, pests and parking - and exclusive use areas, balcony and patio enclosures appear to be the most troublesome subject in Sectional Title.
A balcony / patio, says ST expert Bob Gauld, can be one of many things:
- It can be part of the owner's section.
- It can be non-exclusive common property.
- It can be exclusive use of common property, granted and registered under section 27 of the 1986 Sectional Titles Act.
- It can be exclusive use of common property, granted under the rules after October 1997 as described in section 27A of the current Act
- It can be exclusive use of common property granted under the rules of the 1971 Act.
And, before an owner or a body corporate can even consider an application to enclose a balcony, the Sectional Title plan approved by the Surveyor General and the Rules filed with the Registrar of Deeds will need to be consulted to determine its status.
Gauld notes that the first two categories of balcony / patio are more usual, but that all categories are treated differently and that even the factors common to all of them preclude enclosure authorisation solely by the trustees.
The common factors include:
- The fact that the outer part of the outer walls of the balcony will be beyond the median line of the wall and thus defined in section 5(4) of the Act as common property.
- The possibility that the enclosure of the balcony is a change of use and subject to section 44(1)(g) of the Act.
- Repair and maintenance issues that must be addressed. There are many cases on record of enclosures interfering with the flow of rainwater, sometimes with serious consequences for other owners.
- Consideration about how enclosures will affect the harmonious appearance of the scheme.
A balcony that forms part of a section is the least difficult to handle as it does not require the section to be extended. However, many balconies that are included in the area of the section are not included in the 'bulk' or 'FAR' (floor to area ratio) of the building. In such cases and in spite of the Sectional Title requirements having been met, the local authority may decline consent.
If the enclosure changes the use to which the balcony is put, the written consent of all the other owners will be required. If a new room, such as a bedroom, is created, it will be subject to local authority planning requirements regarding room size, ceiling heights and ventilation.
In addition to these local authority considerations, the enclosure of a balcony / patio that comprise part of the common property, either with or without exclusive use, will almost certainly be seen as an extension of the section and subject to the provisions of Section 24 of the Act.
As to harmonious appearance. Gauld points out that management rule 68(1) provides that an owner 'shall not do anything to his section or exclusive use area which is likely to prejudice the harmonious appearance of the building'.
'But while this is easy to say, it is very hard to interpret. Is something inharmonious aesthetically displeasing, or is it just different? If 19 front doors are painted in gaudy, garish stripes and one door is natural wood, which is inharmonious? Owners can, therefore, expect some inharmonious debate about any proposed enclosures!'
Acknowledgement : Property 24
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