Can You Convert Your Dining Room to a Bedroom?

Issue: Can You Legally Turn your Sectional Title Dining Room into a Bedroom?

Question from Nokuthula:

My husband and I have owned a two-bedroom apartment for almost three years now. We bought it as an investment and have leased it to various tenants during that time. From the outset, we were informed that the maximum number of tenants allowed in the unit is two per bedroom, totalling four tenants. Rather than having two tenants sharing each bedroom, we opted to repurpose the dining room into a bedroom. We did not do any building work or construction. We did not put up any partitions or anything of that nature. We simply added a bed and desk in the dining area instead of the typical dining room furniture. This setup has been in place pretty much since day 1.

A few weeks ago, we received a letter from the managing agent of our building. The letter said that we had:

“breached the rules and regulations governing the building Body Corporate and violated the Sectional Titles Schemes Management Act (STSMA), specifically section 13(1)(g), because of alterations made to your unit, resulting in a subdivision of the unit into a three-bedroom configuration from its original two-bedroom layout. As a result, the trustees request that you reverse these alterations, return the unit to its original state, and reduce the number of residents in the unit to no more than two individuals”

The problem is that we cannot afford to have only two tenants in the apartment because the rental income will not be sufficient to cover the bond payments, the levies, the municipality rates, etc. Is there anyway we can fight this?

From The Legal Desk:

Thank you for your question Nokuthula. Problems in residential complexes can normally be resolved with some decent communication between the parties. The problem, of course, is that some parties are just unnecessarily difficult, which leads to needless squabbles and, eventually, costly litigation. But without getting ahead of ourselves, let’s take a look at the legals…

Section 13 of the Sectional Titles Schemes Management Act¹ (STSMA) details the duties of owners. The subsection in question, 13(1)(g), states:

When the purpose for which a section or exclusive use area is intended to be used is shown expressly or by implication on or by a registered sectional plan, not use nor permit such section or exclusive use area to be used for any other purpose: Provided that with the written consent of all owners such section or exclusive use area may be used for that purpose as consented to.

The interpretation of 13(1)(g) of the STSMA was scrutinised in Mineur v Baydunes Body Corporate.² The court noted that the appropriate test should be to determine whether the relevant change of use envisaged materially affects the other owners in the Scheme. In delivering her judgment, Justice J Cloete stated:

“To sum up: to my mind the proper interpretation to be placed on s 13(1)(g) of the Management Act (as read with management rule 30(f)) is that, where an owner intends to use a section (or subsection of a section, as the case may be) for a use other than its purpose as shown expressly or by implication on a registered sectional plan, and such intended use will materially affect the other owners in the scheme, the consent of all owners in the scheme is required.”

Section 13(1)(g) of the STSMA aims to prevent any consequential problems for the Scheme if sections and exclusive use areas are used for purposes other than those designated. Some examples of the issues that this section aims to prevent include:

an impairment to the structural stability of the building;
a compromise of the security of the other owners;
increased visitor traffic to the building;
misuse of parking facilities;
a negative impact on the common property in the sectional title;
disturbance to the peace and tranquillity associated with the residential scheme; or
any direct negative impact upon other owners in the Scheme.

Based on the above, as stated by the court in Mineur, if the change of use (i.e. using your dining room as a bedroom), is materially affecting the other owners in the scheme, the consent of all owners in the scheme is required. From what you have described, it does not seem like it is, or will, affect any other owners or residents in any negative matter. Additionally, the property allows for four tenants so it is somewhat illogical that you are being asked to reduce the number of tenants to two.

However, the Body Corporate might very well insist that you still need to request permission from the other owners. Should that be the case, I would advise you write the owners a polite letter stating your case. You are welcome to use this response to assist you. Should they, for some malicious reason, refuse to grant consent for you to continue with your current setup, you may approach the Community Schemes Ombud Service (CSOS), which is a statutory body that provides an alternative dispute resolution service. To this end, note that section 13(2) of the STSMA states:

“Any owner who is of the opinion that any refusal of consent of another owner in terms of the proviso to subsection (1)(g) is unfairly prejudicial, unjust or inequitable to him or her, may, within six weeks after the date of such a refusal, make an application in terms of this subsection to an ombud.”

In Cuje-Jakoby v Kaschub,³ the court interpreted the word “unfairly” and found that the words “unfairly prejudicial, unjust or inequitable” denoted conduct which departed from the accepted standards of fair play and that the word “unfairly” should be equated with the word “unreasonably.”

You could thus argue that refusing to grant you consent to continue with your current setup would be unfairly prejudicial, unjust, and inequitable especially since it would be impossible for you to meet your obligations (bond payments, the levies, the municipality rates) if you were forced to reduce the number of tenants to two. All the best.

Written by Theo Tembo