Durban - An Umhlanga Rocks couple have emerged victorious after their two-year battle over balcony tiles with a body corporate.
The couple, Indira and Shaun “Mack” Makadooj, recently won an arbitration appeal judgment about the choice of balcony tiles for a plush flat their trust, the Shaun Mack Family Trust, bought in July 2013 for R8.5 million.
The judgment set aside a previous arbitrator’s ruling and the body corporate was ordered to pay the costs of the arbitration and the appeal.
Commenting on the case, Shaun Makadooj said he was happy with the outcome and that the rights of owners were upheld. He said he had not yet decided on a tile choice.
The appeal judgment said the crux of the case was not just about “tiles” but the tension between body corporate’s rules and an owner’s rights.
The couple first launched a high court application in May 2014 against the body corporate of Oyster Rock in Lighthouse Road, Umhlanga.
In the court application, Shaun Makadooj had said the body corporate was acting like a “schoolyard bully” and had a “high-handed attitude”.
Makadooj had wanted to replace the “weather-beaten” tiles in the flat’s sea-facing balcony and asked for permission.
The body corporate in February 2014 sent a notice to all owners that a specific tile had to be used on the balconies. The trust was not happy with the choice and suggested two other porcelain choices. But an annual meeting of the body corporate in June 2014 found that owners should not make their own decisions on the choice of replacement tiles.
Both the trust and body corporate agreed that the matter was to go for arbitration, and in a ruling last year the couple lost.
The arbitrator found that there was a need for “uniformity” and that the body corporate was the decision-making body.
In the appeal, before three senior Durban advocates, they commented that the building was a “magnificent high-rise apartment block” and that when it was constructed, the same tiles were used in the sea-facing balconies to give a uniform appearance.
The trust said the tiles were worn, porous, subject to fungal growth and probably constituted a health and safety hazard.
The advocates found that in terms of the management rules, the body corporate should have considered whether the trust’s tile choices would “prejudice the harmonious appearance of the building”.
They said this was different from the body corporate specifying the exact tile that all owners had to use as this would be “unreasonable”.
The judgment also said that harmony did not mean “identical”.
“If an owner proposed to use a tile which although not identical is in harmony with the original tiles, no valid reason would exist for the body corporate refusing such permission.”
The Mercury