As I mentioned last month, Paddocks have been presenting at the Estate Agency Affairs Board (“EAAB”) Continuous Professional Development (“CPD”) workshops, currently being held across the country. Whilst taking questions from the attendees at these workshops, it became clear that there still exists a misconception regarding exclusive use areas. Queries are continuously raised as to what is seen as an exclusive use area, how it is registered or created, and who must maintain and repair it.
How is an exclusive use area registered?
In terms of section 27 of the Sectional Titles Act 95 of 1986 (“the Act”), the developer, when making application for the opening of a sectional title register and the registration of the sectional plan, may impose a condition by which the right to the exclusive use of such part/s of the common property, delineated for this purpose on the sectional plan, is conferred upon the owner/s of one or more sections. The developer cedes the right to the exclusive use of a part/s of the common property to the owner/s of units in the scheme by the registration of a notarial deed in the favour of the owner/s. Should a developer cease to be a member of the body corporate before the cession of the right, as described above, any right to an exclusive use area/s still registered in the name of the developer, will vest in the body corporate free from any mortgage bond.
Should such a right vest in the body corporate, the body corporate, duly authorised thereto by a unanimous resolution of its members, may request an architect or land surveyor to apply to the Surveyor-General for the delineation on a sectional plan of a part/s of the common property for the exclusive use by the owner/s on one or more sections. The body corporate, authorised by a unanimous resolution of its members, will transfer the right to the exclusive use area/s to the owner/s on whom such a right has been conferred by the body corporate, by the registration of a notarial deed entered into by the parties. This registered right to an exclusive use area is deemed to be a right to immovable property which can be transferred or bonded etc.
How is an exclusive use area created?
In terms of section 27A of the Act, a developer or the body corporate (by unanimous or special resolution) may make management or conduct rules which confer rights of exclusive use and enjoyment of parts of the common property upon members of the body corporate.
These rules will include a lay-out plan to scale, on which the locality of, and the purpose for which the exclusive use areas may be used, will be indicated. A schedule indicating to which member of the scheme the exclusive use area is allocated will also be included in these rules.
The rule/s as described above must be filed with the Registrar of Deeds, in terms of section 35(5)(a) of the Act, and will only come into operation on the date of filing, as per section 35(5)(c) of the Act.
Is contributions payable on exclusive use areas?
In terms of section 37(1)(b) of the Act, the trustees of the body corporate shall require the owner of a section entitled to the right of exclusive use of a part of the common property, whether such a right is registered or conferred by the body corporate rules, to make such additional contribution to the body corporate fund as is estimated necessary to defray the costs of rates and taxes, insurance and maintenance in respect of the exclusive use area, including the provision of electricity and water.
Who must maintain an exclusive use area?
In terms of section 44(1)(c) of the Act, “an owner shall…keep their exclusive use area in a clean and neat condition”.
Prescribed Management Rule 70(b) of Annexure 8 of the Regulations to the Act provides that “if an owner fails to maintain adequately any area of the common property allocated for his exclusive use and enjoyment, and any such failure persists for a period of thirty (30) days after the giving of written notice to … maintain given by the trustees or the managing agent, the body corporate shall be entitled to remedy the owner’s failure and to recover the reasonable cost of doing so from such owner”.
When marketing the sale of a sectional title unit, it is important to determine whether an exclusive use area exists, either as a registered right recorded in a notarial deed of the section and the sectional plan, or created in terms of the body corporate’s registered rules.
If in doubt, contact Paddocks for assistance.
Article reference: Paddocks Press: Volume 10, Issue 7, Page 2.
Zerlinda van der Merwe has recently been admitted as an Attorney of the High Court. She is a specialist Sectional Title Attorney (BA LLB LLM) and soon to be qualified Conveyancer. Zerlinda forms part of the Paddocks Private Consulting Division and brings a wealth of experience and additional services. If you would like to schedule a consultation with Zerlinda, please contact Nicole on 021 686 3950 or firstname.lastname@example.org.
This article is published under the Creative Commons Attribution license.
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