SA Property - Consuming Water in Sectional Title Schemes
The Current drought (or water crisis) in Cape Town has been an issue in other provinces in South Africa over the past few years. We all need to do our part to save our water resources. This article will address some of the key points to take note of when it comes to water consumption in sectional title schemes.
1. Separate water meters
Most of the older sectional title schemes were developed without separate meters measuring the consumption of water.
In these circumstances the body corporate receives a water bill from the local municipality, and the owners pay for their water consumption in accordance with their participation quota (as shown and allocated to each section on the last sheet of the sectional plan.)
The problem with this situation is that the amount paid for water consumption is directly linked to the size or floor area of the owner’s unit, and not to the actual use of water within that section.
It could be that the owner of the penthouse section with the highest participation quota only spends one month out of every year in residence during the festive season and uses minimal water for the rest of the year. This owner would be paying more for water than the owner of a bachelor flat within the scheme.
However, the owner of the bachelor flat could have three people residing in the section using high levels of water.
Prescribed management rules (‘PMR’) 29(3)(a) provides the mechanism for the installation of separate water meters. A body corporate must, if so directed by a resolution of members install and maintain separate meters to measure the supply of electricity, water, gas or the supply of any other service to each member’s sections and exclusive use areas and to the common property.
In terms PMR 29(3)(b) the body corporate must recover from members the cost of such water supply to sections and exclusive use area based on the metered supply.
The body corporate will also need to install a water meter for common property water consumption. Each owner will pay for that water in accordance with their participation quota.
2. Pre-paid water meters
Another manner of dealing with water consumption in sectional title schemes is for the body corporate to install pre-payment water meters. Practically, the private suppliers of prepaid meters contract with schemes that have bulk meters for the installation of the pre-paid meters, and the users pay a rental for the use of them.
The users buy tokens from a designated supplier, being the third party vendor, who provides and maintains the pre-payment facilities and software. The third party vendors pass the money collected from the end users, less a service fee of course, to the body corporate. The body corporate then pays the municipal bill for the bulk supply.
PMR 29(4) provides the mechanism for doing this. There are four requirements that must be met before the body corporate can install the pre-paid meters. Firstly, the body corporate may on the authority of a special resolution install separate pre-paid meters on the common property to control the supply of water to a section or exclusive use area.
Secondly, all members and occupiers of sections must be given at least 60 days notice of the proposed special resolution with details of all costs associated with the installation of the pre-payment system and its estimated effect on the cost of the services over the next three years.
It should be noted that it is not practical to provide prepaid meters to only some of the sections in a scheme. This would require extensive rewiring and re-plumbing for the installation of separate meters for the whole scheme. Furthermore, the body corporate would need to consider that there would be cost implications for the installation as well as the service fee charged by the third party vendors.
PMR 29(5) contains two further requirements. In the third place, if a pre-payment system is installed, the body corporate is responsible to ensure that the system does not infringe on the constitutional rights of section occupiers to access basic services.
Where water is supplied through pre-paid meters the service is automatically cut off where the service fee is not paid. This is contrary to the Constitutional right to access to water. The 6kl of free water that the scheme gets from the local municipality for each household will need to be pre-programmed into each meter.
Furthermore, bodies corporate are not entitled to cut off water for non-payment of levies because the scheme is not the supplier. Only the service supplier, being the local municipality is entitled to cut off the supply of water. If a body corporate or landlord cuts the water supply they are committing an act of spoliation, and the victim can apply to court for a mandament van spolie – an action to restore water supply.
Lastly, any member who leases a unit to a tenant is responsible to ensure that the system does not infringe the rights of the tenant in terms of the Rental Housing Act 50 of 1999 (the ‘RHA’) which deals with matters arising between landlord and tenants, or any other law.
In terms of section 16(hA) of the RHA states that ‘Any person who unlawfully locks out a tenant or shuts off the utilities to the rental housing property will be guilty of an offence and liable on conviction to a fine or imprisonment not exceeding two years or to both such fine and imprisonment.’
The pre-paid water meter option provides a solution for non-payers of service fees, but can create other problems. It is for this reason that I suggest that bodies corporate rather opt for the installation of separate water meters.
If you have any questions on the ways in which water is consumed and metered in sectional title schemes, please contact us at [email protected]
Source: Paddocks Dr Carryn Melissa Durham
Courtesy: The Agent - Estate Agency Affairs Board