29 March 2023
164
As a result of the continuing woes of load shedding , many sectional owners are considering alternative and renewable energy solutions like solar panels to minimize the effect that load shedding has on their households. A common question, therefore, being raised by sectional owners is whether they are allowed to install solar panels at their sectional unit.
The Sectional Titles Schemes Management Act 8 of 2011 (“Act”) accompanied by the Sectional Title Schemes Management Regulations (“Regulations”) regulate the legalities around the powers, rights, responsibilities and obligations of the body corporate of a sectional title scheme and regulate how the common property of the scheme can be dealt with and utilized.
As an owner of a unit in a sectional title scheme, you automatically become an owner of an undivided share in the common property of that scheme, such as the driveways, swimming pool, staircases, elevators, and roofs.
The body corporate as the owners of a sectional title scheme elect the trustees of the sectional title scheme and the trustees have a fiduciary duty towards the body corporate to attend to the management of the affairs of the sectional title scheme for and on behalf of the body corporate.
Prescribed Conduct Rule 5(1) as contained in the Regulations provides that an owner or an occupier of a unit cannot without the trustees’ consent in writing, make any changes to the external appearance of their unit or any exclusive use area that has been assigned to that unit unless such change is minor in nature and would not diminish the appearance of the unit or the common property.
Consequently, should an owner of a sectional unit wish to erect solar panels on the roof of their unit, they would be doing so upon the common property of the sectional title scheme. Prescribed Management Rule 29(1) and (2) states that in the event where a non-reasonably necessary (luxurious) improvement is intended to be made to the common property that a unanimous resolution of the body corporate would be required, and where a reasonably necessary improvement is intended to be made to the common property that only a special resolution of the body corporate will be required. Section 1 of the Act defines a unanimous resolution as a resolution passed unanimously by all the members of the body corporate at a meeting at which at least 80% calculated both in value and in number, of the votes of all the members of a body corporate are present or represented; all the members who cast their votes do so in favour of the resolution; or agreed to in writing by all the members of the body corporate, and a special resolution as a resolution passed by at least 75% calculated both in value and in number, of the votes of the members of a body corporate who are represented at a general meeting; or agreed to in writing by members of a body corporate holding at least 75% calculated both in value and in number, of all the votes.
Whether an improvement would be seen as a luxurious or reasonably necessary improvement will depend on various subjective factors such as the location of the scheme, the market value of the units of the scheme as well as the particular needs of the body corporate. It can be strongly argued that installing solar panels on the roof of a sectional title unit will be a reasonably necessary improvement to the common property, as it is one of the few viable renewable and alternative energy solutions to the current electricity crisis South Africans face daily. The latest budget speech and tax incentives for installing solar panels would also seem to support such reasonability.
Important to note is also Section 14(1) of the Act which indicates that an owner may obtain insurance in respect of any damage to their section which can arise from certain risks which may not be covered by the insurance policy of the body corporate. Sectional owners should therefore ensure that should they wish to install solar panels on the roof of their unit and such risk falls outside the current insurance policy of the body corporate, they also insure such solar panels, as they can be expensive to replace in the event of damage.
Sectional title owners can therefore install solar panels, but must ensure that before doing so the necessary approvals are obtained from the body corporate if a prior decision on the matter has not already been made by the body corporate.
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