In this article, we will look at what to do when you want to make alterations that involve extending a sectional title unit by increasing the boundaries or floor area of the section. The recommended procedure for the extension of sections is as follows:
Talk to a land surveyor or architect
Get a land surveyor or architect to advise whether or not the city council will approve the extension. There’s little point in going through the entire approval process only to get your extension application rejected by the city council.
Get the body corporate’s permission to extend your section
In order to approve any proposed extension of a section, the prior approval of the members of the body corporate is required, authorised by a special resolution.
There are two elements to extending a section legally: getting the required permissions and completing the process of building and registering the extension. The required special resolution may be tabled for member approval at either a special general meeting, convened for that purpose, or in writing by a round robin process.
Send out notice of the special general meeting
Should a special general meeting be convened, the notice calling the special general meeting must contain the proposed special resolution, and must be sent to all members 30 days prior to the special general meeting. The notice must be sent to all members via hand delivery, or pre-paid registered post to the members’ sections, or to another address within South Africa, that the member has chosen in writing for the purpose of receiving notices. In addition (but not as an alternative) to one of the above methods of delivery, the notice can also be emailed or faxed to members.
The special resolution must be passed by at least 75%
At the special general meeting, a quorum must be present or represented before the business of the meeting can be dealt with. In order to be validly approved, the special resolution must be passed by at least 75% of the members, present personally or represented, at the meeting. The votes must be calculated both in value (participation quota) and in number. When votes are calculated in value, the total participation quota of all sections registered in the name of a member is calculated, and when votes are calculated in number, each member has one vote, irrespective of the number of sections owned by that respective member.
Should the special resolution be passed at a special general meeting, where the quorum is less than 50% of the total value of all members in the scheme, the resolution cannot be implemented for a period of one week, allowing members to take the necessary steps to challenge the resolution passed.
Should the special resolution be tabled for approval via a round robin process (in writing), as opposed to a special general meeting, there is no requirement for a notice period. However, the members should be afforded a reasonable opportunity to consider, and vote on, the proposed special resolution. In order to be validly approved, the special resolution would need to be passed by at least 75% of all the members of the scheme, calculated both in value and number.
Agree on an amount for compensation for the extended property
As part of the special resolution required to be obtained, the applicant owners may agree with the members of the body corporate on an amount payable, to serve as compensation for the use of the relevant parts of common property upon which their sections are proposed to be extended. The aforementioned reference to compensation is not considered to be a purchase consideration, as the respective parts of the common property is not being purchased by the relevant members, and is further not a legal requirement of the process to be followed. Therefore, the determination of the amount of the aforementioned compensation is unregulated, and dependent on an agreement between the parties, which may be guided by a market valuation of the parts of the common property concerned, in its current unbuilt state.
If rejected, you can apply for an order with the CSOS
Should the special general meeting or round robin process fail, the trustees or respective applicant owner/s, will have recourse to the Community Schemes Ombud Service for resolution of the dispute.
Prepare and submit an amended sectional plan of extension for approval
Once the necessary approval has been obtained, the applicant’s appointed land surveyor or architect may prepare and submit an amended sectional plan of extension, for approval and registration. Furthermore, they must ensure the adjustment of the participation quotas of all sections within the scheme, in a revised participation quota schedule, affecting the voting value and liability of members relating to levy contributions.
Register the approved sectional plan of extension
A note to the above is the architect’s certificate is required, confirming that there is not a deviation of 10% in the participation quota of the relevant section as a result of the extension. Alternatively, a conveyancer’s certificate, confirming that the consent of mortgagees was obtained should the proposed extension result in a deviation of more than 10% of the relevant section, will be required.
If you are an owner or trustee in a sectional title scheme, and have any concerns or queries relating to this topic, feel free to contact us at email@example.com or on 021 686 3950, for a non-obligation quotation to consult with one of our attorneys in the consulting department.
Article reference: Paddocks Press: Volume 12, Issue 12, Page 02.
Zerlinda van der Merwe is an admitted Attorney of the High Court, specialist Sectional Title Attorney (BA, LLB, LLM), Zerlinda brings a wealth of experience and forms part of the Paddocks Private Consulting Division.
This article is published under the Creative Commons Attribution license.