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 consulting@paddocks.co.za.
This article is published under the Creative Commons Attribution license.
Back to Paddocks Press – July 2015 Edition.
9 Comments.
I am glad that you address this very misunderstood and incorrectly applied subject. Our complex experiences exactly such a clearly misunderstood problem, by even most legal eagles. In the following scenario;
Informing the trustees that they cannot re-allocate carports without 100% consent from the body corporate. The trustees referred the matter to the attorneys, which issued the following response:
“ii) It is our instructions that the parking allocation has not been registered. The inter partes exchange of use in respect of the relevant parking units between consenting owners, presents an ad hoc beneficial arrangement.”
Similarly, I noted that the empty staff quarters that also registered as common property could not rent out as a storeroom without 100% consent from the body corporate.
Background to my argument;
“Under the 1971 Sectional Titles Act, most exclusive use areas where granted by means of the Rules under that Act. If those rules were formally registered, the exclusive use areas created by those rules probably still apply. Rules applying to exclusive use areas in sectional titles scheme registered under the rules in terms of the 1971 Act.
• Are not recognised as Real Rights.
• May not be bought or sold while exchanges require an amendment to the rules.
• Cannot be bonded.
• Improvements require Body Corporate, not trustees, consent.
• The body corporate does repairs and maintenance to the Exclusive Use Areas.
• Holders of rights must contribute to the levy fund to defray costs of rates, taxes, insurance and maintenance under section 37(1)(b).
The 1986 Act removed the facility to create exclusive use areas with rules and introduced a means of registering exclusive used areas by means of a complicated and expensive process. Exclusive use areas registered under this method are registered real rights to immovable property that can be traded and exchanged between members of the body corporate. In this instance exclusive used areas are referred to as registered exclusive use, where; excusive used areas registered under section 27 of the 1986 Act.
• Are recognised as real rights.
• Can be bought and sold among and between unit owners
• Can be bonded.
• Request for Improvements are authorised by the trustees and may not be reasonably refused.
• Holder repairs and maintains.
• Holders of rights must contribute to the levy fund to defray costs of rates, taxes, insurance and maintenance under section 37(1)(b).
• Expensive to create and to register in the name of owners as a land surveyor and attorney is required.”
Our complex established in 1992 with exclusive use areas registered under section 27 of the 1986 Act. Building took place in two phases as provided in section 25 of the Act. The parking bays are exclusive use areas registered under section 27 of the 1986 Act!
“The Act revised in 1997 as the Sectional Titles Amendment Act that re-introduced a facility to create exclusive Use areas by means of rules. Where;
• Created under section 27(A) of the 1986 Act. (27 amended to 27(A) in the 1997 Act)
• Are not recognised as Real Rights.
• May not be bought or sold while exchanges require an amendment to the rules.
• Cannot be bonded.
• Unless allowed in the rule, improvements require Body Corporate, not trustees, consent.
• Unless specified in the rule, the body corporate does repairs and maintenance to the Exclusive Use Areas.
• Unless specified in the rules, holders of rights are not obliged to contribute to the levy fund.
• Relatively inexpensive and easy to create. No land surveyor needed while attorney expenses are limited to drafting and filing the rule.
While developers and bodies corporate since then have had the benefit of using either or both the 1986 or 1997 rules; there are no alternate registrations in terms of another revision of the Act for our complex.
In terms of the noted revisions in the Act not only are exclusive use areas created differently but there management, control and uses differ considerably. Owners and trustees do not understand that exclusive use Areas are created under processes defined by the Act. It is a misconception that walls, fences, height above ground, access or any other apparently logical reason, create exclusive use areas.”
WHERE am I loosing the plot?
Regards,
Cobus
Bibliography
Gauld, B. (n.d.). A Year of Sectional Titles. EXCLUSIVE USE COMPARISONS.
Hi Cobus,
This is unfortunately outside the scope of quick, free advice. Please get in touch with our Consulting team on consulting@paddocks.co.za, they will then discuss this, and get back to you with a quote.
Kind regards,
Paddocks
Good day
I have just purchased a unit in a complex.
I notice, with concern, that the back of my unit is being used as a thoroughfare for cleaning and gardening staff. I have major security concerns.
Are the other units allowed to use my EUA on a regular basis.
There is no common amenities, like a swimming pool or club house ahat the back of the units.
Dear Sammy,
Thank you for your comment. We are more than happy to help, however we do not give free opinions / advice. Please email us on consulting@paddocks.co.za with regards to your matter, and we can provide you with a no-obligation quote, so that we can assist you.
Kind regards,
Paddocks
Are members of a body corporate (owners who are not trustees) entitled to see the Managing Agent’s monthly report on the scheme, including levy roll, payments etc.
Hi ,
i live in a sectional title apartment. I had my kitchen,toilet and small bedroom steel windows replaced with aluminum ones in 2005. The Body Corporate at the time never informed me of the median line. This I only found out recently when my neighbour had his done and put in for a claim. Could I now put in a claim?
Kind regards.
Lorraine
Dear Lorraine,
Thank you for your comment. We are more than happy to help, however we do not give free opinions / advice. Please email us on consulting@paddocks.co.za with regards to your matter, and we can provide you with a no-obligation quote, so that we can assist you.
Kind regards,
Paddocks
Does Section 37 (1)(B) still apply in 2018.
Hi Judy,
Thank you for your comment. We would love to help, however we do not give free advice. Here’s how we can help:
– We offer a 1-week Free Basics of Sectional Title short course.
– We offer consulting via telephone for R490 for 10 minutes. Please call us on 021 686 3950.
– We have Paddocks Club, an exclusive online club, to help you get answers to your questions about community schemes.
Kind regards,
Paddocks