Accessiblity: Body Corporate’s Responsibility

Are individuals or the body corporate responsible for ensuring buildings are wheelchair accessible? Cilna Steyn provides some clarity 

Sectional title ownership (owning a flat or property in a complex) and residence comes with its challenges but is very often the most convenient way to live. There is one important question for wheelchair users who are considering Sectional Title living: Is there an obligation on a developer or a body corporate to ensure that a Sectional Title Scheme is wheelchair accessible?

The National Building Regulations requires that all new buildings must be wheelchair accessible for multiple storeys. The majority of Sectional Title Schemes that we currently have in South Africa would have been built after the National Building Regulations and Buildings Standards Act of 1977 became known to the public or promulgated. We make this assumption as the Sectional Titles Act was promulgated in 1971.

The obligation to ensure compliance with the National Building Regulations would be that of the developer of the Sectional Title Scheme. The requirement to ensure that the spaces within the building or complex are wheelchair accessible would be limited to all public places.

In the context of the scheme, this will only be the common property; thus, the necessary ramps, lifts and other wheelchair accessible facilities need to be implemented on common property.

The National Building Regulations has a specific and clearly defined set of requirements regarding accessibility. These requirements could very well discourage a developer from complying with the provisions of the Act.

Thankfully, the Act and regulations are very clear on this particular topic and non-compliance will carry severe consequences, either in the form of a fine or imprisonment. In some cases, both. More importantly, a developer needs to comply in full before they would be able to obtain an occupancy certificate which would allow them to transfer the developed units to purchasers.

If the development was built prior to the Act, it would be the obligation of the body corporate to upgrade the scheme to ensure compliance and that all common property is in fact wheelchair accessible. This will probably require the body corporate to raise a special levy to fund such renovations.

The individual units do not have to be wheelchair accessible. The owner of the unit needs to obtain consent to make the necessary alterations to the unit to make it wheelchair accessible. The costs of this is carried by the owner of the unit. There is no obligation on a developer to make individual units wheelchair accessible.

In 2016, there was a white paper published with the intention to bring in a new Act which would be called The Disabled Persons Act. It intends to regulate not just public accessibility for people with disabilities, but also regulate and govern a whole range of the relevant parts of society for people with disabilities.

Unfortunately, it has not even reached the phase of being considered for promulgation. It does, however, give us a clear indication of the planned direction with regards to legislative support for people with disabilities.

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Cilna Steyn is the managing Director at SSLR Inc. Attorneys. She completed her LLB Degree at Unisa, after which she was admitted as an attorney in 2007. She co-founded Steyn & Steyn Attorneys.

She regularly presents training session, where she advises groups of rental agents and private landlords on matters relating to Landlord and Tenant Disputes and broader scope Property Law related matters.

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