Reasoning behind use restrictions
Sectional title schemes are community schemes: communities of residents, retailers, business people or even manufacturers. The members joined the community because of its nature, so this fundamental reason for purchase is best served by making sure parts of the scheme are not used for different purposes. This basic principle is more widely reflected in the local municipality’s zoning scheme.

There could also be consequential problems for the scheme if sections and exclusive use areas are used for purposes other than those designated.

The main problem in residential schemes is use of sections for business purposes. Common problems include increased visitor traffic as clients or customers enter and leave the premises, mis-use of parking facilities, security breaches and so on.

Another very common problem is a lack of parking resulting from garages being used for storage. Most sectional title schemes struggle with inadequate parking facilities anyway. The original building plan would only have been approved by the local municipality if the parking requirements of the time were met.

There are three sets of provisions in the Sectional Titles Act and the prescribed rules that can be used to make sure areas are only used for their designed purposes.

S37(1)(n)
The body corporate must ensure compliance with any law that affects the common property or improvements to the land. This obligation covers its own activities and the activities of all owners and occupiers.

Laws that apply to the common property and improvements would include the local municipality’s bylaws and zoning scheme, which would in turn apply to the use of both sections and common property.

S44(1)(g)
This provision restricts owners use of their sections or exclusive use area to any purpose indicated or even implied on the sectional plan. Modern sectional plans are less specific regarding sections than the plans that were prepared for older schemes, usually merely describing them as sections. Older plans, on the Title sheet, usually described the use of the parts of the buildings. Common specifications were: flats, garages, servant’s quarters and so on.

Portions of the common property subject to registered exclusive use rights are clearly demarcated on the sectional plan and their use always specified.

PMR 68(1)(v)
As modern sectional plans are less specific than they use to be regarding use, prescribed management rule 68(1)(v) was changed to counter the problem. This rule extends the provision of section 37(1)(g) by saying that not only is a statement or implication of use on the sectional plan significant, but if the use of the section or EUA is shown on the building plan, can be inferred from the scheme’s rules or is obvious from its construction, layout or amenities, then it may not be used for any other purpose.

Portions of the common property subject to rule based exclusive use rights must also be clearly shown but on a scale drawing included in the rule and their use specified.

Section 44(1)(g)
The Act does, however, provide a mechanism for changing the use of a section or exclusive use area. Acknowledging the importance of the use restrictions, the mechanism provided is one of the most onerous of all authorisations in the Act: a change of use requires the written consent of all the owners in the scheme. But the provision goes on to say that an owner applying for a change of use may apply to court for relief if he or she considers the refusal of another member to provide written consent to be unfair or otherwise prejudicial.

Article reference: Paddocks Press: Volume 10, Issue 10, Page 2.

Anton Kelly is an extremely knowledgeable specialist Sectional Title and HOA teacher and consultant. Having been the lead teacher on all the Paddocks courses for the last 5 years, Anton lives and breathes Sectional Title and HOA law, all day every day. There are not many issues he hasn’t come across before.

This article is published under the Creative Commons Attribution license.

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