Balcony enclosure is a troublesome subject in sectional title. When trustees are considering a balcony enclosure application, they should go through the following questions and take into account the considerations set out below.
What is the nature of the balcony?
There are really only two options here. The balcony is either going to form part of the owner's section or form part of the common property. If it forms part of the common property, it may or may not be subject to exclusive use rights. The trustees can determine the nature of the balcony by inspecting the scheme's sectional plan. If the balcony forms part of the section, it will be situated within the solid lines that indicate the boundaries of the section.
The balcony forms part of the section
If the balcony forms part of the section, this will be easier to handle than if the balcony forms part of the common property because enclosing the balcony will not amount to an extension of the owner's section. However, the alteration will still need to be approved by the trustees, who will need to consider the "harmonious appearance" of the building, as well as the local authority, which will consider the issue of bulk. These two considerations are dealt with later.
The balcony forms part of the common property
The enclosure of a balcony that forms part of the common property, whether or not it is subject to exclusive use rights, will amount to an extension of the section and therefore the provisions of section 24 of the Sectional Titles Act, 1986 will have to be complied with. Thus, the extension will need to be authorised by a special resolution of the body corporate, after which the owner concerned will have to arrange for draft section plans of the extension to be drawn up and submitted to the Surveyor-General for approval. In addition, if the proposed extension causes a deviation of more than 10% of the participation quota of any section in the scheme, then the holders of bonds over all other sections in the scheme will need to consent.
Enclosing a balcony can affect what is known as the FAR (Floor Area Ratio) or bulk of the property as a whole. This is a zoning requirement that determines what percentage of the area of the erf/lot/stand may be covered with habitable building. If there is no bulk left for the building, then the local authority will not approve a balcony enclosure.
When a balcony is designed to be open to the elements, it is designed differently to the way it would be if it were to be enclosed. An open balcony will often have a sloping floor, water outlet pipes and a single course wall. It is designed to have rain come in and run out, and it does not really matter if the floor is not waterproof, because the balcony below it is normally also open. But when a balcony is to be enclosed, these aspects will change. So, it is often sensible to impose conditions on any proposed enclosure that ensure that the building envelope will operate properly, for example by requiring that a waterproof membrane be installed, that a cavity wall be built and that the balcony be otherwise properly sealed so that it is waterproof and will not cause unexpected problems for the occupiers of any balcony below.
In terms of prescribed management rule 68(1)(iv), an owner may not do anything to his section or exclusive use area that is likely to prejudice the "harmonious appearance" of the building. The fundamental consideration here is whether or not the proposed change will negatively affect the overall appearance of the buildings and thus negatively affect the market value of the sections. This requirement is phrased as an absolute prohibition. This means that not only is it difficult to interpret - what is considered harmonious or inharmonious is so subjective - but there is also no proper process for getting consensus that a proposed change complies with this requirement. In practice, when considering an application for a balcony enclosure, an owner and the trustees should get the views of owners in a general meeting as to whether they believe the change would prejudice the harmonious appearance of the building.
Jennifer Paddock is a sectional title expert. Learn more about the benchmark course in sectional title scheme management, presented by Paddocks in conjunction this the University of Cape Town. The next course will start on 6 December 2010. Late registrations will be accepted. Please contact Kate at: email@example.com or see www.paddocks.co.za.
UCT (Law@Work) Sectional Title Scheme Management course: http://www.paddocks.co.za/uct-sectional-title-scheme-management
We have three owners, who have roofed an open patio area EUA, with the trustees permission, plans where approved etc, but the covered area now covers more than 10% of the PQ area of each unit, I did not give & was not asked for consent, it seems the trustees took it upon themselves to give permission for these awful looking structures, will they now have to take them down, if I don't give consent.