Solar panels in Sectional Title Schemes, who is responsible for roof maintenance

As South Africa grapples with an ongoing power crisis, many owners within sectional title schemes are exploring alternative renewable energy solutions, such as solar panels, to mitigate the impact of power outages on their homes while also reducing their electricity bills and environmental footprint. This raises a critical question: Are owners permitted to install solar panels on the roofs of their units, which are considered common property?

 

Understanding the legal framework governing such installations is essential for owners navigating this complex issue. In this article, we will explore the most effective strategies for installing solar panels on common property, as well as the legal considerations involved. Additionally, we will discuss how the body corporate can regulate maintenance obligations related to these installations.

 

The Sectional Titles Schemes Management Act 8 of 2011 ("STSMA") and its accompanying Regulations define the powers, rights, responsibilities, and obligations of the body corporate within sectional title schemes. This legal framework governs the management and utilisation of common property.

 

 

When owners wish to utilise specific areas of common property, such as installing solar panels, this usage must be formalised. Owners should start by reviewing their body corporate's rules to identify any existing regulations regarding solar panel installations. Next, they should consult with the managing agent, building manager, or trustees to determine if such an installation is permitted. Any work undertaken on a section or common property typically requires approval from the trustees and/or the body corporate members.

 

While there are several ways to achieve this, the most effective approach, in our opinion, is by creating exclusive use areas ("EUAs") over the part of the common property upon which the solar panels will be installed, i.e., the rooftop. The STSMA allows the body corporate to create management or conduct rules that confer rights of exclusive use and enjoyment of parts of the common property upon its members. We recommend that these rights be conferred through an amended conduct rule, which must be approved by a special resolution of the body corporate.

 

The amended conduct rules should cover several key aspects, including:

 

1. Specific positioning of the panels on the roof.

2. Maximum number of panels allowed (considering the size and occupancy of the section).

3. Generic design specifications for the solar panels.

4. Installation techniques.

5. Certification of compliance.

6. Maintenance responsibilities for the installed panels and the roof area they cover.

7. Accountability and indemnity concerning damages, injuries, and losses related to the body corporate.

8. Insurance coverage, whether through the owner's policy or the body corporates.

 

The rules should allow the body corporate and its agents to access the EUA for inspections. It would also be prudent for the body corporate to retain the right to require the removal of any equipment that falls into disrepair and to conduct emergency repairs on the underlying common property at the owner's expense, clearly defining these terms in the rules.

 

Moreover, the STSMA prescribes that a layout plan and a schedule of allocation should be prepared and referenced in the amended rules. These documents must be presented for approval at a special general meeting, annual general meeting, or via a written special resolution. Once approved, they must be submitted to the Community Schemes Ombud Service for review before becoming enforceable.

 

The STSMA further mandates that the body corporate charge owners with exclusive use rights an additional contribution, on top of their regular levies, to cover costs associated with their EUAs-unless the rules specify that the owners are responsible for such costs. Consequently, maintenance and costs related to these EUAs can and should be adequately regulated in the amended conduct rules.

 

 

Now, what if the body corporate wishes to install solar panels for communal benefits, such as powering basement lighting or elevators? Such installations are considered improvements to common property and must be evaluated by the trustees to determine whether they are "reasonably necessary" or "not reasonably necessary." Given the current energy crisis in South Africa, it can certainly be argued that such installations are reasonably necessary unless the scheme already has sufficient panels in place.

 

Prescribed Management Rule ("PMR") 29(2) of the Regulations to the STSMA permits the body corporate to make alterations or improvements to common property that are deemed reasonably necessary. However, PMR 29(2) states that no proposal for alterations or improvements to the common property may be implemented until all members receive at least 30 days' written notice with details of:

 

a) The estimated costs associated with the proposed alterations or improvements;

b)   Details of how the body corporate intends to meet the costs, including details of any special contributions or loans by the body corporate that will be required for this purpose; and

c) A motivation for the proposal, including drawings of the proposed alterations or improvements showing their effect and a motivation for the need for them.

 

If any member requests a general meeting during this notice period to discuss the proposal, it must not be implemented unless it is approved, with or without amendment, by a special resolution adopted at a general meeting. Notably, the aforementioned notice period can be bypassed if the trustees opt to call a special general meeting directly.

 

In summary, as we navigate these challenging times, community schemes have a unique opportunity to adopt renewable energy solutions that benefit all residents. By following the proper procedures, owners can contribute to a more sustainable and resilient living environment.

 

About the Author

Please click on the following link to learn more about the Author and the company, TVDM Consultants -https://www.tvdmconsultants.com/rizaar-smidt