Exclusive use areas are defined as specified portions of the common property of a Body Corporate, which have been allocated for the sole or exclusive use by an owner or owners of one or more than one section within the scheme. These areas are typically parking bays, garden or yard areas, patios or balconies.
These areas may be established under the Sectional Titles Act, 1986 or the Sectional Title Schemes Management Act, 2011.
A. Exclusive use areas reserved under Section 27 the Sectional Titles Act, 1986
If a developer wants to establish exclusive use areas when opening a sectional title register, he/ she must instruct a land surveyor to include these in the draft sectional plan. The developer will also instruct the conveyancer to include a condition to reserve the exclusive use areas in favour of certain specified owners in the documents for the opening of the sectional title register.
If the developer did not reserve any exclusive use areas when opening the sectional title register, the Body Corporate may do so upon a unanimous resolution having been obtained by its members. Once the resolution is passed, the trustees may instruct a land surveyor to prepare the relevant sectional plan.
In both instances:-
1. The draft sectional plan must be approved by the Surveyor General.
2. A Certificate of Real Right of Exclusive Use Areas will be registered in the Deeds Registry and the exclusive use areas will be ceded to the respective owners by way of a Notarial Deed of Cession.
Exclusive use areas reserved under Section 27 of the Sectional Titles Act may be bonded in favour of a bank or any other creditor.
B. Exclusive use areas reserved under Section 10 of the Sectional Title Schemes Management Act, 2011
As an alternative to reserving exclusive use rights under the Sectional Titles Act, a developer may also propose to allocate these rights in terms of the rules of the Body Corporate. A land surveyor or architect must be instructed to prepare a layout plan to scale to indicate the locality, numbering and purpose for which the respective parts may be used. The plan together with a schedule indicating the allocation, must be attached to the rules and submitted to the Community Schemes Ombud Services (CSOS) for approval and registration.
The conveyancer will lodge the certificate issued by CSOS with the Deeds Registry when opening the sectional title register.
Likewise, if the developer has not allocated any exclusive use areas when opening the register, the Body Corporate may do so once the relevant resolution had been passed by the members of the Body Corporate.
The members may elect to allocate the exclusive use areas in terms of the Conduct Rules, in which event a special resolution must be passed. Should the exclusive use areas be allocated in terms of the Management Rules, a unanimous resolution will be required.
Whilst the Sectional Title Schemes Management Act does not specifically state in terms which set of rules the exclusive use areas must be allocated, it does seem appropriate to rather allocate these in terms of the Management Rules as opposed to the Conduct Rules.
The allocation of exclusive use areas in terms of the rules are far more cost effective as the layout plan required for this purpose does not need to be approved by the Surveyor-General and nor is it registered in the Deeds Registry. It is important to remember however that the exclusive use areas allocated in this manner cannot be bonded in favour of a bank or any other creditor.
For the purpose of any sale transaction, it is always important to determine:-
1. If any exclusive use areas had been reserved/allocated in favour of the owner of a section;
2. If reserved, whether it is in terms of the Sectional Titles Act or allocated in terms of the rules (as the bond approval must include the exclusive use area in the property description, and
3. Whether the exclusive use area used by an owner is indeed reserved/allocated to him or her (to avoid any dispute after the transfer had been registered).
In our next article we will take a closer look at an owner’s rights and obligations when it comes to his/her exclusive use area.
Written by Karen Britz