Section Extension or Exclusive Use Area Improvement? 

Understanding the difference and why it is important

By Jennifer Paddock

In sectional title schemes, distinguishing between a section extension and an improvement to an exclusive use area (EUA) can be challenging. While both involve changes to private property within the scheme, they follow different approval processes and have different legal implications. Understanding this difference is crucial for both owners and bodies corporate to ensure compliance with the relevant legislation and to avoid potential disputes.

Section Extensions

According to the Sectional Titles Act 95 of 1986 (ST Act), a section extension occurs when an owner extends the boundaries or floor area of their section. This can manifest in various ways, such as building onto the section outwards, upwards, or downwards, or even adding a mezzanine level within a section with a double volume area. 

A section extension alters the participation quota (PQ) of the section, and as a result the PQs of all sections in the scheme, increasing the extending section owner’s liability for levies and the value of their vote.

The process for approving a section extension is clearly defined in the ST Act and the Sectional Titles Schemes Management Act 8 of 2011 (STSM Act). It requires:

• Obtaining a special resolution of the body corporate authorising the section extension [Section 5(1)(h) STSM Act].
• Securing municipal building plan approval [Section 4(1) National Building Regulations and Building Standards Act 103 of 1977, Section 3(1)(p) STSM Act].
• Arranging for a land surveyor or architect to prepare an amending sectional plan of extension, which must be submitted to and approved by the Surveyor-General [Section 24(3) Sectional Titles Act].
• Obtaining consent from all unit bondholders if any section’s PQ increases by more than ten per cent as a result of the section extension [Section 24(6A) Sectional Titles Act].
• Finally, registering the approved amending sectional plan of extension at the Deeds Registry and obtaining a new title deed for the extended section [Section 24(4) of the Sectional Titles Act].

EUA Improvements

An EUA improvement is when an owner makes changes or additions to an area of common property that they have exclusive use of, such as a patio, garden, balcony, or parking bay. Examples of EUA improvements include erecting a shade sail over an EUA parking bay or adding a pool to an EUA garden area.

Prescribed Management Rule (PMR) 30(g) made under the Regulations to the STSM Act allows an owner to make improvements to their exclusive use area, which do not amount to a section extension, if authorised by ordinary resolution of the body corporate. PMR 30(g) allows the body corporate to impose reasonable conditions in regard to the use or appearance of the structure or building improvement and withdraw consent if the conditions are breached.

Is it a section extension or an EUA improvement?

The distinction between a section extension and an EUA improvement can become blurred in practice, leaving the body corporate unsure as to which approval process should be followed. Let’s look at an example I dealt with in my consulting practice.

Case Study: EUA Lapa Alteration

An owner applied for permission to alter an existing lapa in their EUA garden. The body corporate granted approval via an ordinary resolution under PMR 30(g). However, the final construction differed significantly from what the body corporate had approved, leaving the trustees unsure whether the alterations amounted to a section extension or whether the alterations could in fact be authorised under PMR 30(g).

Before the alteration: The lapa had one brick wall, three removable canvas walls, a braai, and a table.

After the alteration: The lapa was fully enclosed with brick walls, save for a one-metre gap that could be enclosed by strong zippable canvas. It had a sliding door and windows, a concrete floor, a thatched roof, electricity, plug points and lights, plumbing, a sink, built-in counters, an air conditioner, a fridge and indoor furniture. 

The question then arose, did these alterations constitute a section extension requiring the formal and more rigorous process outlined earlier, or were they merely improvements to an EUA permissible with body corporate consent under PMR 30(g)? The body corporate consulted me to get my opinion.

To determine whether the lapa should legally be considered a section extension, I considered several factors such as the extent of the enclosure, the construction materials used, the extent to which the altered lapa resembled an enclosed, habitable room rather than an open outdoor garden structure, and the nature of the furniture.

Given the extent of the enclosure and the extensive interior features, I concluded that the altered lapa no longer resembled a garden lapa. Instead, these substantial alterations effectively increased the usable floor area and functionality of the section and as such, the alterations should be treated as an extension of the owner’s section.

Why Does the Distinction Matter?

The distinction between a section extension and an EUA improvement is crucial for several reasons:

1. Legal Compliance: Section extensions require a special resolution, municipal approvals, and registration of an amended sectional plan with the Surveyor-General and Deeds Office. EUA improvements do not.
2. Financial Contributions: An extended section increases its floor area, which means the owner’s PQ increases, affecting their levy contributions and voting power. If a section extension is treated as an EUA improvement, the owner avoids paying their fair share of levies, placing an unfair financial burden on the other owners.
3. Maintenance Responsibilities: The STSM Act assigns maintenance responsibilities based on the nature of the property, which is shown on the scheme’s sectional plan. If a section extension is not properly registered and shown on the sectional plan, disputes tend to arise regarding who is responsible for maintaining the altered structure.
4. Future Sales and Transfers: If a section extension is not formally registered, it may cause issues when the owner attempts to sell the unit. Prospective buyers and banks may require proof that all alterations comply with legal requirements.

Conclusion

The distinction between section extensions and EUA improvements is not always clear-cut, as demonstrated by the EUA lapa alteration case study. Trustees should carefully assess proposed changes to EUAs and sections to ensure the correct approval process is followed, and if in doubt, they should seek professional advice. 

_________________________________

Article reference: Paddocks Press: Volume 20, Issue 3

This article is published under the Creative Commons Attribution license.

Back to Paddocks Press – March 2025