Muller v Trustees of Beraud Flats Body Corporate

Chantal Muller, the registered owner of unit 12 in Beraud Flats, purchased the unit on 3 June 2021. At the time of sale, she was aware of structural defects affecting the unit, namely broken, missing or rotted roof sheeting, rotten roof supports, absence or failure of storm water drainage, and a rusted passage support bar caused by roof leaks. She alleged that these defects had previously been reported to the body corporate by the former owner, but no repairs had been done because the former owner had fallen into arrears with levies. During the sale process, it was allegedly agreed that the outstanding levies would be paid from the sale proceeds and that the body corporate would then attend to the repairs. After the arrear levies were paid and transfer proceeded, the body corporate still refused to do the repairs, contending that the unit had been sold 'as is' and that the prior owner's non-payment meant the respondent should not now be held liable. Muller approached the Community Schemes Ombud Service for an order compelling the body corporate to effect the repairs.

• Whether the defects complained of formed part of the common property or were part of the owner's section.
• Whether the body corporate was obliged under section 3(1) of the Sectional Titles Schemes Management Act 8 of 2011 to repair and maintain the roof and related exterior structures.
• Whether the owner's duty under section 13 of the STSMA to maintain her section shifted responsibility for these repairs to the applicant.
• Whether the respondent could rely on the prior owner's levy arrears or the alleged voetstoots ('as is') sale to avoid its statutory maintenance obligations.
• Whether the applicant had established her claim on a balance of probabilities for relief under section 39(6)(a) of the CSOS Act.

The application was granted. The respondent body corporate was directed, in terms of section 54(2) of the CSOS Act, to attend to the necessary roof-related repairs, including repair of broken/missing/rotted roof sheeting, rotten roof supports, storm water drainage, and the rusted passage support bar caused by the roof leak, within 60 business days of delivery of the order. No order as to costs.

Where defects relate to common property in a sectional title scheme, such as roof structures and associated exterior drainage and supports, the body corporate bears the statutory duty under section 3(1) of the STSMA to maintain and repair them. An owner's duty under section 13 of the STSMA applies to the owner's section and does not shift responsibility for common-property repairs. Prior levy arrears of a former owner, or the fact that a unit was sold voetstoots, do not constitute a defence to the body corporate's statutory maintenance obligations.

The adjudicator observed that the mere fact that an owner may have failed to maintain his or her unit does not mean the body corporate is relieved of its duty to repair common property such as the roof. The decision also noted that the respondent's claim of prejudice was without merit once arrear levies had been settled and the levy clearance certificate had been issued. No broader obiter beyond these ancillary observations appears from the text.

The matter confirms, within the CSOS adjudicative framework, that a body corporate's statutory duty to maintain common property cannot be avoided because a previous owner was in levy arrears or because a unit was sold voetstoots. It reinforces the distinction in sectional title law between an owner's maintenance obligations in respect of a section and the body corporate's obligations regarding common property, especially roofs and exterior structural components.