4-Tune Investments (Pty) Ltd v Kingsgate Body Corporate

The applicant, 4-Tune Investments (Pty) Ltd, owner of unit 52 in the Kingsgate sectional title scheme in Sea Point, sought reimbursement from the respondent body corporate for half the cost of replacing a large sliding window situated in the enclosed balcony area of its unit. The applicant alleged that water ingress into the unit was caused by defects and water runoff from common property, including a corrugated iron roof without a gutter above the unit, and that the body corporate was responsible for maintaining and waterproofing the exterior of the building. The applicant relied on approved building plans dated 31 October 2014 and amended sectional title plans showing the enclosed balcony, contending that the enclosure was lawful and that no condition had been imposed making the owner solely responsible for maintaining the enclosure windows. The applicant submitted a quotation and tax invoice for R15 077.13 and claimed half that amount. The respondent denied liability, asserting that enclosed balconies in the scheme were not approved by the body corporate, that such balconies were not designed to be enclosed, and that owners had historically borne their own repair costs. It further argued that the balcony had allegedly been enclosed without prior consent and that, alternatively, the enclosure fell within the applicant's section. An earlier adjudication order of 22 November 2022 under the same reference had been set aside by consent, and the matter was reheard. The respondent had, however, already paid R7 538.56 to the applicant on 1 August 2023, purportedly subject to the outcome of the rehearing.

• Whether the enclosed balcony was a lawful and approved structure reflected on the approved building plans and amended sectional title plans.
• Whether the large sliding window in the exterior wall of the enclosed balcony was partly common property and partly part of the section for purposes of maintenance and repair liability.
• Whether the body corporate was obliged under the Sectional Titles Schemes Management Act and related rules to reimburse the applicant for half the replacement cost of the window.
• Whether the applicant was entitled to relief under section 39(6)(b)(ii) of the Community Schemes Ombud Service Act.

The applicant's relief under section 39(6)(b)(ii) of the CSOS Act was granted. The adjudicator ordered that the status quo remain, namely that the respondent's payment of R7 538.56 to the applicant on 1 August 2023 in fulfilment of the initial order be regarded as just and fair. No order as to costs was made.

Where a window is set into an exterior wall of a section in a sectional title scheme, the median line runs through the centre of that window. Consequently, the inner half falls within the section and the outer half forms part of the common property. The owner is responsible for the interior half under section 13(1)(c) of the STSMA, while the body corporate is responsible for the exterior/common-property half under section 3(1)(l) of the STSMA. Accordingly, the reasonable maintenance, repair or replacement costs of such an exterior window must be shared equally between the owner and the body corporate. If the relevant enclosure is shown on approved plans, it is to be treated as a lawful structure for purposes of determining maintenance liability.

The adjudicator observed that the respondent should take cognisance of Prescribed Management Rules 22(1) and 24(2) concerning a maintenance and replacement plan and reserve fund. The adjudicator also commented generally that parties in section 54 CSOS adjudications are usually expected to bear their own costs, and that adverse cost orders are more commonly made in matters dismissed as frivolous, vexatious, misconceived or lacking substance under section 53. These remarks were ancillary to the core decision.

The matter is significant in sectional title and community schemes law because it affirms the established boundary principle that exterior doors and windows in sectional title schemes are split by the median line, making the owner and body corporate jointly responsible for associated repair and replacement costs. It also illustrates the role of approved building and sectional title plans in determining whether alterations are lawful and whether resultant structures engage body corporate maintenance duties. The decision is practically important for CSOS disputes concerning enclosed balconies, water ingress, and the allocation of maintenance liability between owners and body corporates.