Mohamed Hanief v Trustees of Penzance Body Corporate

The applicant, Mohamed Hanief, is the owner of unit 301 in the Penzance Body Corporate in Durban. He reported damp damage on the inner walls of his unit on 21 June 2022. His unit is situated at the end of the block and shares a wall with the common property. An insurance assessor determined that the dampness emanated from the common property and quantified the damage to the applicant’s unit at R1 792.73. The applicant alleged that the managing agent, Trafalgar, sought to pay him only R792.13 after deducting a R1 000 excess. He contended that the excess should not be borne by him because the damage resulted from the body corporate’s failure to maintain the common property. He also requested certain documents relating to the insurance claim, including quotations, trustee resolutions/minutes, and the acknowledgement of loss document. The respondent body corporate failed to file submissions in the adjudication.

• Whether the damp damage to the applicant’s unit originated from common property, thereby making the body corporate responsible for repair costs.
• Whether the respondent body corporate was liable to reimburse the applicant the full quantified repair amount of R1 792.73, including any insurance excess.
• Whether the applicant was wrongfully denied access to scheme documents relating to the insurance claim.
• Whether any order should be made compelling production of documents said not to exist, and whether that relief had become moot.

The application succeeded. The respondent was ordered to pay the applicant R1 792.73 on or before 30 January 2024. The relief sought regarding access to documents and the ruling that the managing agent’s deduction of the excess was void was treated as moot. No order as to costs was made.

Where damage to an owner’s section is shown on a balance of probabilities to have originated from common property, and particularly where the body corporate failed to maintain that common property properly, the body corporate is legally responsible for the full reasonable repair costs. In such circumstances, any insurance excess relating to the claim is for the body corporate’s account, not the owner’s. Relief compelling production of documents should not be granted where the documents do not exist, and such relief may become moot once substantive compensation is awarded.

The adjudicator observed generally that determining liability for damage in sectional title schemes requires first establishing the source and cause of the damage. The adjudicator also remarked that, even if the authority of the managing agent to deduct the excess were questionable, it was unnecessary to determine that issue because the body corporate remained liable for the full repair amount. These comments were not essential to the final order.

This adjudication is significant in community schemes and sectional title practice because it reaffirms that a body corporate is responsible for damage to a section where the cause originates in common property and results from the body corporate’s failure to maintain that common property. It also clarifies the practical allocation of insurance excesses in sectional title schemes: an owner should not bear the excess where the underlying damage was caused by common property or by the body corporate’s maintenance failure. The decision illustrates the CSOS adjudication approach where unchallenged documentary evidence can suffice to establish liability on a balance of probabilities.