1 Introduction
As sectional title schemes continue to increase across South Africa due to various economic and socio-economic factors, it is inevitable that questions and, more often than not, disputes arise from certain unfamiliar and confusing terms which emanates from such schemes. Exclusive use area is one such term.
2 What is an exclusive use area and how is it created?
An exclusive use area is defined in section 1(xv) of the Sectional Titles Act1 as:
“a part or parts of the common property for the exclusive use by the owner or owners of one or more sections, as contemplated in section 27 of the Act”.
Exclusive use areas form part of the common property of a scheme but are reserved for the exclusive use of an owner or owners of specific section/s. Examples of such areas include parking bays, gardens, balconies, and in some instances garages.2
Two types of exclusive use areas exist in our law. The one is created in terms of section 27 of the Sectional Titles Act (STA) and the other in terms of section 10(7) of the Sectional Titles Schemes Management Act (STSMA).3
2.1 Exclusive use area in terms of section 27 of STA
Exclusive use areas created in terms of section 27 of the STA are generally called formal exclusive use areas. When a sectional title scheme is being developed, the developer instructs a land surveyor which specific parts of the common property will be used as exclusive use areas, whereafter the land surveyor will measure said areas and indicate it on the sectional title plan. The developer initially reserves the right to these areas. Upon the opening of the sectional title register in the Deeds office, a title deed will be issued to the developer. The said deed is called a certificate of real right of exclusive use areas.4
Once the sections of the scheme are transferred from the developer to the purchasers, the rights of the exclusive use areas will be ceded to the said purchaser/s. The purchaser will, upon registration, obtain a title deed for the section that he purchased, which is called a deed of transfer, and a separate title deed for an exclusive use area, which is called a notarial deed of cession of exclusive use area.5
2.2 Exclusive use area in terms of section 10(7) STSMA
Exclusive use areas created in terms of section 10(7) of the STSMA are generally called informal exclusive use areas.
In terms of section 10(7) and 10(8)(a)(b) of the STSMA:
“(7) A developer or a body corporate may make management or conduct rules which confer rights of exclusive use and enjoyment of parts of the common property upon members of the body corporate.
(8) The rules contemplated in subsection (7) must—
(a) include a layout plan to scale on which is clearly indicated—
(i) the locality of the distinctively numbered exclusive use and enjoyment
parts; and
(ii) the purposes for which such parts may be used; and
(b) include a schedule indicating to which owner each such part is allocated.
The developer or body corporate may, in terms of section 7, declare certain areas of the common property, exclusive use areas and assign the exclusive use areas to owners of sections. The sectional title plan need not be amended, nor title deeds be issued for the exclusive use areas.6
3 Differences between formal and informal exclusive use areas
3.1 Formal exclusive use areas
The right to the exclusive use areas is a real right.7 The exclusive use areas are indicated on the sectional title plan. The right is held under a separate title deed and may be mortgaged, leased or ceded.8
3.2 Informal exclusive use areas
The right to the exclusive use areas is merely personal in nature. The areas are not indicated on the sectional title plan, but reference of the areas is made in the rules of the sectional title scheme. The rights conferred to an owner in terms of section 10(7) are not formally transferred/ceded from one holder to another and are not held under a separate title deed.9 As the right is not a real right, it may not be ceded, mortgaged or leased.10
4 Conclusion
Being an owner, tenant, trustee or managing agent of a sectional title scheme, may be daunting due to certain unfamiliar and confusing terms found in management rules, conduct rules and agreements of sale. Thankfully, Malan Lourens Viljoen Inc. and its dedicated personnel in its conveyancing and litigation departments can assist you with all sectional title scheme related matters.
Article by Clifton Smit (BCom LLB), Candidate Legal Practitioner at Malan Lourens Viljoen Inc.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.
1 Sectional Titles Act, 95 of 1986.
2 Kilbourn & Botha The ABC of Conveyancing 5-5 (hereinafter referenced as Kilborn & Botha).
3 Sectional Titles Schemes Management Act 8 of 2011.
4 Kilborn & Botha 5-6.
5 Kilborn & Botha 5-6.
6 Kilbourn & Botha 5-7.
7 West The Practitioners Guide to Conveyancing & Notarial Practice 572 (hereinafter referenced as West).
8 Kilbourn & Botha 5-7.
9 West 572.
10 Kilbourn & Botha 5-8.