Anton Kelly

Exclusive use is an interesting term. It is often assumed that if one “owns” an exclusive use area (“EUA”), one automatically has the sole right to use it and must carry out and pay for all work required to maintain it – but this is not the case. In sectional title schemes, exclusive use means that an owner can use, enjoy and benefit from a part of property that is co-owned by all owners in the scheme, a part of the “common property”. Both the owner who holds this right and the portion of the common property that is subject to the right must be clearly identified, so everyone is completely sure of exactly who may use exactly what areas. One of the reasons that this certainty is required is that owners who hold exclusive use rights are responsible for all the costs the body corporate incurs in respect of the EUA.

Exclusive use in the sectional title context is fundamentally an agreement amongst all the owners in the scheme that an identified portion of their jointly-owned property will be used only by a specified owner, or a defined group of owners. It is essential that the part of the common property and the relevant owners be clearly identified because in terms of the Sectional Titles Act, 1986 (“the Act”), these two issues determine who is responsible to carry out and to pay for maintenance and repair of the EUA. In terms of section 37(1)(j) it is the function of the body corporate to properly maintain the scheme’s common property. Section 44(1)(c) sets out an owner’s obligations, which are to repair and maintain a section but, in respect of an exclusive use area, to keep it neat and clean. The body corporate’s obligation to carry out maintenance of exclusive use areas is complemented by the obligation, in terms of section 37(1)(b) to recover the amounts it spends on such maintenance, from the owner(s) who hold the exclusive use rights.

Exclusive use rights are created and conferred in one of two ways, either as registered real rights or by way of a right conferred in terms of a scheme rule. The person holding the registered right has a certificate issued by the Registrar of Deeds, while the person holding the rule-based right is identified in an allocation schedule, usually as the owner from time to time of a specific section in the scheme, which schedule forms part of the text of the rule. Either way, there is certainty as to who holds the right.

EUAs subject to registered rights are surveyed and shown on the approved and registered sectional plan. The survey beacons are identified and described, the distances between them and their bearings from one another are listed in a schedule on the plan. Additionally, the extent of the EUA is often described in the notes to the sheet of the sectional plan in which the EUA is delineated; for example, the note might say that the exclusive use area extends to the inner surface of a surrounding wall. The area is numbered and its purpose described. The location of an EUA subject to rule-based rights, its identifying number, size and intended use are marked on a scale layout plan, which along with the allocation schedule forms part of the rule. In both cases there is certainty as to who holds the rights and the exact area of common property that is subject to the rights.

In a recent unreported case heard in the Durban High Court, Marguerite Anne Catherine de la Harpe v Body Corporate of Bella Toscana (judgement delivered by Chetty J on 28 October 2014) the issue was the responsibility for the cost of repair or replacement of a dangerously damaged common property garden wall. The sectional plan is referred to in paragraphs 13 and 15 of the judgment, indicating that it was inspected during the hearing, but it seems that the plan was not used to establish whether the wall was located entirely within the EUA, partly inside the EUA or entirely outside the EUA. These are the only three possibilities and a finding as to the location of the wall relative to the boundaries of the EUA should have led to clarity as to which of the parties was obliged to repair or replace the wall and which of them was obliged to pay for the works. It seems from the judgment that the judge made the award based on a finding that the existence of the wall benefited the owner concerned, rather than establishing to what extent, if any, the wall was subject to exclusive use rights and then applying the principles in the Sectional Titles Act as to who should carry out and pay for the work.

Article reference: Paddocks Press: Volume 10, Issue 1, Page 2.

Anton Kelly is an extremely knowledgeable specialist Sectional Title and HOA teacher and consultant. Having been the lead teacher on all the Paddocks courses for the last 5 years, Anton lives and breathes Sectional Title and HOA law, all day every day. There are not many issues he hasn’t come across before.

This article is published under the Creative Commons Attribution license.

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