I often get asked what process needs to be followed when an owner wishes to extend their section. The most common examples are where an owner encloses a common property patio, which then becomes part of the living area of the section, or where an owner adds a mezzanine floor in their section.
If the alteration extends past the median line as shown on the sectional plan and results in extending the boundaries or floor area of the section, then the owner will have to comply with section 24 of the Sectional Titles Act 95 of 1986 (“the Act”) that deals with the extensions of sections.
These are the steps that must be followed, by the owner, in order to extend their section:
1. The owner must obtain the approval of the body corporate, authorised by a special resolution. It is not uncommon for the body corporate, before giving consent by way of special resolution, to require proof that the local authority will approve the building plans.
2. An amending sectional plan of extension showing the section extension must be drawn, approved by the Surveyor-General and registered at the Deeds Registry. The owner will therefore need to appoint a land surveyor or architect to submit a draft plan of extension to the Surveyor-General for approval.
3. The submission of a draft sectional plan of extension of a section to the Surveyor-General must be done as prescribed, and must be accompanied by:
a. a certificate issued by an architect or land surveyor stating that the proposed division into sections and common property is not contrary to any operative town planning scheme, statutory plan or conditions subject to which the development was approved in terms of any law, that may affect the development; and
b. an adjusted participation quota schedule, as the extension of any section will affect the participation quotas allocated to all sections.
The Surveyor-General will not approve a draft sectional plan of extension, unless it was prepared in accordance with the Act and the applicable documents have been submitted to him or her in terms of the the provisions of the Act.
4. Regulation 23 deals with the registration of approved sectional plans of extensions of sections, and states that the application must be submitted to the Registrar of Deeds under prescribed Form O, contained in Annexure 1 to the Regulations.
5. An application to the Registrar of Deeds for the registration of a sectional plan of extension of a section must be accompanied by:
a. two copies of the sectional plan of extension of the section;
b. the sectional title deed of the section to be extended;
c. any sectional mortgage bond to which the section may be subject, together with a certificate by a land surveyor or architect stating that there is not a deviation of more than ten percent (10%) in the participation quota of the relevant section as a result of the extension; or if there is a deviation of more than 10%, a certificate by the conveyancer stating that the mortgagee of each section in the scheme has consented to the registration of the sectional plan of extension of that section; and
d. any other documents that may be prescribed.
6. If the extension of the section causes a deviation of more than 10% in the participation quota of the section, then the owner must send a notice by registered post to each mortgagee giving details of the mortgage bond; the mortgagor and the reference number of the mortgage loan (if any); the proposed extension in relation to its size and location; and the impact on the security of such mortgagee as to the diminution of the participation quota allocated to the mortgage unit. If a response, to the notice, is not received by the owner within 30 days of the posting of the notice by registered post, it shall be deemed that the mortgagee does not have any objection to the proposed extension, and that the mortgagee consents thereto.
7. When the requirements of section 24 of the Act, and of any other relevant law have been complied with, the Registrar of Deeds must register the sectional plan of extension, and must make an appropriate endorsement on the title deed. The Registrar will allot a distinctive number to the plan.
8. The Registrar must then furnish a copy of the sectional plan of extension to the local authority concerned, and must notify the Surveyor-General of the registration of the plan. The Surveyor-General must then amend the original sectional plan, and the copy held at the Deeds Office to reflect the extension of a section.
9. The sectional plan of extension of a section will, upon the registration, be deemed to be incorporated in the registered sectional plan of the scheme. Furthermore, such plan is deemed to be part of the sectional title deed, and an owner’s title to his or her section and his or her undivided share in the common property is subject to, or benefited by, the servitudes, other real rights or conditions (if any) which burden or benefit the land shown on the sectional plan, and to any registrable condition imposed by a developer.
In my next article, I will address the various considerations a body corporate should make before authorising an owner’s request to extend their section by special resolution. If you are experiencing any problems in your scheme in this regard, please contact us at email@example.com.
Article reference: Paddocks Press: Volume 11, Issue 08, Page 01.
Dr Carryn Melissa Durham is one of the most highly qualified Sectional Title Attorneys in the country (BA, LLB, LLM and LLD), Carryn forms part of the Paddocks Private Consulting Division.
This article is published under the Creative Commons Attribution license.