Meumann White Inc

An exclusive use area is defined as “a part or parts of the common property for the exclusive use by the owner or owners of one or more sections” in a sectional title scheme. In essence this means that even though the common property is jointly owned by all owners, a specified owner will have the exclusive use of a specified area of the common property.

Common examples of exclusive use areas are gardens, court yards and parking bays.

Exclusive use areas may be allocated in the following ways:-

  1. In terms of the Management Rules of the Body Corporate

The developer may upon the opening of the sectional title scheme reserve the right to exclusive use in terms of the Management Rules of the Body Corporate.

To do so, the developer would instruct a draftsperson / architect / land surveyor to prepare a layout plan to scale of the relevant exclusive use areas and would include a specific rule in the Management Rules to create and allocate the exclusive use areas to the owners of specific sections. The said rules, together with a copy of the plan, will then be registered with the Community Schemes Ombud Services (CSOS) who would issue a certificate for lodgement in the Deeds Registry upon the opening of the scheme.

Where exclusive use areas are created in terms of the rules, the holder thereof merely enjoys a personal right to exclusive use. Although this is the most cost-effective way to create exclusive use areas, there is no title deed for the right and nor can the holder thereof register a mortgage bond, lease or servitude over it.

  1. Notarially in terms of Section 27 of the Sectional Titles Act

As an alternative to creating the exclusive use areas in the Management Rules, the developer may create them as real rights in terms of the aforementioned legislation.

To do so, the developer would instruct a land surveyor to draft a sectional plan which depicts the exclusive use areas and what it will be used for. The said plan must be approved by the Surveyor General and the exclusive use areas are then registered as real rights in the Deeds Registry. As the developer transfers the sections to third parties, he would simultaneously therewith cede the exclusive use areas by way of a notarial cession.

This is a more expensive option of creating exclusive use areas but where exclusive use areas are registered in this manner, the holder thereof receives a registered real right, is provided with a notarial deed and a mortgage bond, lease or servitude may be registered over it.

The holder of the exclusive use area may also sell the right, provided that it is sold to another owner within the scheme.

  1. Creation of Exclusive Use Areas by the Body Corporate

If the developer did not reserve the rights to exclusive use areas when the scheme was opened, or if his right to do so has lapsed, the Body Corporate may do so by way of a unanimous resolution of its members.

The members may then decide whether the exclusive use areas will be reserved as personal rights in terms of the Management Rules of the Body Corporate or by way of a notarial registration in the Deeds Registry.

In this instance, the costs of creating and allocating the exclusive use areas will be paid by the Body Corporate, either through surplus funds or by raising a special levy which will be payable by its members.

In conclusion, to prevent disputes between owners regarding use of common property, it is always recommended to create exclusive use areas in a formal manner, whether through the Management Rules or by way of notarial registration.

Article written by Karen Britz