

In addition to owning their sections, owners may also hold rights of exclusive use over portions of the common property. These areas are most commonly parking bays and gardens. Owners who hold exclusive use rights are obliged by section 37(1)(b) of the Act to pay all the costs attributable to the areas over which they hold the rights. They do this by making an additional contribution to the administrative fund, although the contribution might, in practice, just be included in their monthly levy account.
Exclusive use areas can also be areas or facilities used, not just by one owner, but by groups of owners. Large garden areas, access roads in very large schemes and even satellite TV services are examples. But how are the costs attributable to these areas shared by the owners who share their exclusive use? On the face of it, they should pay according to their participation quotas because they are, after all, paying the costs attributable to a portion of the common property. But these areas are not being used by all the owners in the scheme and only that specific group of owners are paying the costs. Section 37(1)(b) makes the costs attributable to exclusive use areas, the responsibility of the owner, or owners, who hold the rights of exclusive use. This suggests that the contribution should rather be shared equally among the owners who share the exclusive use.
This article is published under the Creative Commons Attribution license.
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12 Comments.
Good day.
Firstly thank you for this wonderful website.
I have a question. I am an owner of a unit in a sectional title in Margate, KZN.
It is small with 6 units. Unit 6 of the sectional title has exclusive use of the swimming pool. The pool is very close to the boundary wall of the adjacent property (about 2.5m from boundary wall). The problem has now arisen that when the swimming pool was installed the space between the wall and the pool was filled up and apparently not very well. Furthermore the boundary wall became thus weight bearing and was not designed for this. The result is now that the wall is cracking and being pushed out.
Our HOA is now being held responsible for the costs of repairing this wall. The development was finalised in 2009 and the problem was brought to the attention of the HOA back then as well but nobody did anything. So, from previous articles I read the developer cannot be held liable for this as it is more than 3 years ago.
My question is that I don’t think it is fair that we as the HOA be held liable for the damages caused by an area that we don’t even have access to. I am of the opinion that the owner of the unit that has exclusive use to the pool should carry these costs. I must also mention that the original developer is also the owner of the unit that has exclusive use of the pool. Am I wrong in thinking this and must we as the HOA shoulder the costs to repair this wall?
Please advise?
Furthermore I noticed that there are courses that run on sectional titles that is offered by Paddocks. Are there any courses in Gauteng. I am an LLB student doing articles and would like to attend some of these courses.
I look forward to you response.
Kind Regards
Renen
Hi Renen,
Thanks for your question. Please contact our private consulting department on 021 686 3950 and we will let you know what your options are in terms of receiving advice. Thanks so much!
Good day,
Thanks for the article. Please can you confirm if I understood correctly.
The article indicates that “Owners who hold exclusive use rights are obliged by section 37(1)(b) of the Act to pay all the costs attributable to the areas over which they hold the rights. They do this by making an additional contribution to the administrative fund, although the contribution might, in practice, just be included in their monthly levy”.
The additional contribution is for the exclusive use?
Any maintenance related to this area, ie waterproofing of patio area is for the owner’s account or is it for the body corporate account (that receives the additional contribution.
Your confirmation would be greatly appreciated,
Kind Regards, Mona Kitchen
Hi Mona,
Should the body corporate be collecting additional contributions for an exclusive use area, the body corporate would then be responsible to settle the account. Should there be a shortfall in the in the recovery in contributions, the owner will be responsible for the outstanding amount.
Regards,
Paddocks
Good day
I live in a sectional title complex, can the chairperson insist that a portion of the ground is the owners property without any legal documents. This is not registered as exclusive use area. I pay rates and levy on this portion and no maintenance is done this portion.
Thank you.
Hi Dian,
You would need to determine the nature of the area in question in order to confirm responsibility. The area may form part of the section; a registered or rule based exclusive use area; or subject to a lease agreement, in which case responsibility for maintenance and repairs will fall on the relevant owner or holder of a right as listed above.
Regards,
Paddocks
Hi,
can you advise how the levies for a EUA garden area are calculated? same sqm rate as the section or is a garden considered lower in value than habitable space
Thank you for your comment. We would love to help but unfortunately do not give free advice. Here’s how we can help:
– We offer a Free Basics of Sectional Title 1-week short course (R199 admin fee). You’ll be able to ask your course instructor any related questions. Find out more here.
– We offer consulting via telephone for R490 for 10 minutes. Please call us on +27 21 686 3950.
– We have Paddocks Club, an exclusive online club, to help you get answers to your questions about community schemes. Find out more here.
Kind regards
Paddocks
Hi
I need assistance with regards to the current Government Gazette dated 14 June 2011, No 34367, which reads and I quote:
“Duties of owners
13 (1) An owner must—-
(c) repair and maintain his or her section in a state of good repair and, in respect of an exclusive use area, keep it in a clean and neat condition”
We have 5 groundfloor units whom have exclusive use rights to the gardens walled with wooden access gates. The exclusive use areas are noted on the building plans of the complex. An additional levy is imposed on the owners, but this levy is used for the upkeep and cleaning of the gardens by our garden/cleaning contractor.
There seems to be confusion on how the above must be read. Is the above devided into two portions, taking the word “and” as well as punctuation marks “commas”, therefore the first portion relates to the owner’s responsibility on the maintenance of his own unit inside, and the second portion specifically referring to the exclusive use area and the owner’s responsibility for only keeping that portion neat and tidy?
Or should the whole sentence be read that apart from the section maintenance, the owner is also responsible for the maintenance (crack filling, painting, varnish etc) over and above keeping the area neat and tidy?
We seem to have various opinions on how this rule should be read.
Kind regards
Hi Ben,
Thank you for your comment. We would love to help but unfortunately do not give free advice. Here’s how we can help:
– We offer a Free Basics of Sectional Title 1-week short course. You’ll be able to ask your course instructor any related questions. Find out more here.
– We offer consulting via telephone for R490 for 10 minutes. Please call us on +27 21 686 3950.
– We have Paddocks Club, an exclusive online club, to help you get answers to your questions about community schemes. Find out more here.
Kind regards
Paddocks
Hi there, what is the ratio difference in the tariff/ rate of exclusive use levies vs standard/ mom exclusive use levies?
Hi Mona,
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