In this article, we will take a look at exclusive use areas, either registered, or created in terms of rules, in sectional title schemes.
The Sectional Titles Act 95 of 1986 (“the STA”), has been repealed and replaced, in part, by the Sectional Titles Schemes Management Act 8 of 2011 (“the STSMA”), as from 7 October 2016. The STSMA removed most of the scheme administration and management provisions from the STA.
It has recently become clear that there is misconception that exists regarding exclusive use areas, created and allocated in terms of a scheme’s registered, or now approved, rules. In our practise, we have been receiving queries relating to whether exclusive use areas may still be created in terms of a scheme’s rules, considering that section 27A of the STA has been repealed. Let us have a look at this question, in light of 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In terms of section 27 of the STA (not repealed by the STSMA), the developer, when making application for the opening of a sectional title register, and the registration of the sectional plan, may impose a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 a part or parts of the common property, delineated for this purpose on the sectional plan, is conferred upon the owner or owners of sections. The developer cedes the right to the exclusive use of a part of the common property to the owner of a unit within the scheme by the registration of a notarial deed in the favour of the owner. Should a developer cease to be a member of the body corporate before the cession of this right, the right to an exclusive use area still registered in the name of the developer, will vest in the body corporate free from any obligation, such as a mortgage bond.
Should the body corporate wish to delineate and register the rights of exclusive use, the members of the body corporate will need to authorise the process by passing a unanimous resolution. The body corporate may then instruct an architect or land surveyor to apply to the Surveyor-General for the delineation on the amending sectional plan of extension, of a part of the common property for the exclusive use by the owner of a section. The body corporate will transfer this right by the registration of a notarial deed. This registered right to an exclusive use area is deemed to be a real right to immovable property, which can be transferred or bonded.
Can exclusive use areas still be created and allocated in terms of a scheme’s rules?
As mentioned above, section 27A of the STA has been repealed. However, it has been replaced by section 10(7) and (8) of the STSMA.
In terms of section 10(7) of the STSMA, a developer or the body corporate 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.
In terms of section 10(8) of the STSMA, these rules will include a layout plan to scale, on which it is clearly indicated, the locality of the distinctively numbered exclusive use areas, and the purpose for which these exclusive use areas may be used. A schedule will also be included, indicating to which owner the exclusive use area is allocated.
The management or conduct rule, along with the layout plan and schedule of allocation, once approved by the members via special or unanimous resolution, must be submitted to the Community Schemes Ombud Service for examination and approval, and will only come into operation on the date of such approval.
Are contributions payable on exclusive use areas?
In terms of section 3(1)(c) of the STSMA, the trustees of the body corporate must require that 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 an additional contribution to the body corporate’s administrative fund as estimated necessary to defray the costs associated to that area of common property.
Who is responsible to maintain exclusive use areas?
In terms of section 3(1)(l) of the STSMA, the body corporate is responsible to maintain the common property, including exclusive use areas, in a state of good and serviceable repair. Whereas, in terms of section 13(1)(c) of the STSMA, an owner must just keep their exclusive use area in a clean and neat condition.
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 rules.
Should you require assistance with the drafting of rules creating and allocating exclusive use areas, contact us at Paddocks on 021 686 3950 or at consulting@paddocks.co.za.
Article reference: Paddocks Press: Volume 12, Issue 09, 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.
7 Comments.
Hi Zerlinda
If I contribute paying a Levy (standard PQ rate) on my exclusive use area (Garage) for the last 20 Years why must I still contribute 50% if the Garage door is replaced?
Dear Ernest,
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. Alternatively, join us on http://www.paddocks-club.co.za.
Kind regards,
Paddocks
I am grateful for clarity on the roles of the Body Corporate and of individual owners vis-à-vis maintenance of exclusive use areas. It is now quite clear that the owners are NOT responsible for repairs but only for keeping the areas “neat and clean”. Thank you!
Gaegte Me Z vd Merwe,
re; instandhouding van eksklusiewe gebruiks reg area, u skrywe verwys. die Beheer liggaam moet die area instandhou- graag wil ek dit volgende vir u voorhou
1) Melia komplek in Pretoria het 30 eenhede- elke eenheid het n motor parkeer plek voor die eenheid plus n area waar wasgoed droog gemaak word- niemand het toegang tot die genoemde gebied behalwe die eienaar van die eenheid. Let wel op die volgende: Melia eienaars het op hul eie veranderings aangebring aan genoemde areas bv deure aangebring en dak opgesit aan wasgoed area. M.a.w. Melia kompleks beheer liggaam het dit nie amptelik aangebring nie. Nou vereis sekere eienaars dat die beheer liggaam moet die koste van instandhouding dra. Kan die beheer liggaam hierdie koste weier?
U aanbeveling op die vraag sal baie waardeer word.
Die uwe
J.T Hattingh
When we brought this unit we were informed that its pet friendly after almost 3 yr the MA and Trustees decided NO PET Allowed.
What can we do we can not just get rid of the animals.
The conduct rules has not been finalized by CSOS.
Also we brought it by knowing we can close our space at the back so we can keep pets. My husband called the MA at that time he said it’s fine if we close it. Now the current MA and Trustees say we must remove it but there is also a unit that has a exclusive unit. Why can they have one but not us.
What can we do?
Thanks
Lizel
Hi Lizel,
Thank you for your comment. This would be something that our legal team would need to assist with. Please send all the relevant details to consulting@paddocks.co.za and the team will provide a no-obligation quote for their assistance with this query.
Kind regards
Paddocks Team
I’m trying to understand what you are saying in the context of sections 2(3) of the STSMA and 27(4)(b) of the STA to understand how the rights move from one party to the other and become vested in the new owner.
As I understand it, the right as in ownership of the actual property is transferred and held by means of registration of a title at the Deeds Office subject to all the relevant legislation pertaining to the ownership of immoveable property.
Quite separately from that we have the exclusive use rights who exist ito of the STA section 27as a separate real right registered with the deeds office and transferred by a deed of cession/notarial deed of transfer, or
equally separately, as a personal right between the holder and the BC created by an allocation in the form of a rule approved unanimously by the members, and registered with the CSOS as a rule. (sections 10(7) and (8) of the STSMA) The registration by the relevant authority being the thing that serves to vest the right in the person.
It appears to me that in the case of both rule based rights and section 27 rights there must be a positive act of transferring the rights between the seller and the buyer by means of a notarial deed of transfer and registering it at the deeds office passed simultaneously to the property transaction for the rights to become vested in the new owner. It also appears that if there is a failure to execute this separate transaction the rights revert to the body corporate by means of the operation of section 2(3) and 27(4)(b) and only the BC can then allocate and register the rights to become vested in the new owner.
Obviously the holder of a personal rule based right with a limited lifespan cannot transfer the right by changing the rule and only the body corporate has the right to do that (Section 10(7) and (8)) which may explain the existence of section 27(4)(b) to vest the right which has been rendered “homeless” by the operation of section 2(3).
That upsets my long held belief that the exclusive use rights transfer automatically together with transfer of the property as an integral part of the property transaction. It seems not.
Perhaps this difference between the property ownership and the holding of exclusive use rights and how each is transferred warrants an article to itself.
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