Change of use in sectional title sections or exclusive use areas

Introduction

The issue of change of use in sectional title arises when owners decide to use parts of their sections or exclusive use areas for a purpose other than it was originally intended and constructed to be used.

When schemes are first developed the different parts of the building are built with a certain intended use or purpose. The use is usually evident from the area’s physical attributes and available amenities. For example, it would be obvious that an area is to be used as a garage if it has a large garage door and driveway connected to it.

Examples of change of use in sectional title

An example is when an owner converts his garage into a granny flat. A garage space is intended to be used as a space for parking a motor vehicle or storing tools and gardening equipment. This could cause problems within the scheme because, where the garage is used for another purpose, it could place more pressure on the availability of parking bays in the scheme, as the owner would then need to park outside the garage.

Recently I was asked to consult for a client who was a trustee for a scheme developed to be used for the commercial purpose of medical suites. This use was obvious from the location of the scheme in proximity to a hospital; the construction of the sections; and the amenities available in each section. It was also shown as such on the sectional plan. A new owner purchased a unit within the scheme and opened a clothing store in the unit. This change of use caused many consequential nuisance issues.

I have also come across a situation where the owner wanted to enclose their balcony and convert it into a bathroom! My main concern was that this alteration would impair the stability of the building as the balcony would not have been able to facilitate the weight of a bathtub full of water. 

What does the legislation say?

Section 13(1)(g) of the Sectional Titles Schemes Management Act 8 of 2011 (“the STSM Act”) states that:

“An owner must when the purpose for which a section or exclusive use area is intended to be used is shown expressly or by implication on or by a registered sectional plan, not use nor permit such section or exclusive use area to be used for any other purpose: Provided that with the written consent of all owners such section or exclusive use area may be used for that purpose as consented to.”

Section 13(2) of the STSM Act adds to section 13(1)(g) and states that: 

“Any owner who is of the opinion that any refusal of the consent of another owner in terms of the proviso to subsection (1)(g) is unfairly prejudicial, unjust or inequitable to him or her, may, within six weeks after the date of such a refusal, make an application in terms of this subsection to an ombud.” 

Prescribed Management Rule (“PMR”) 30(f) further states that: 

“The body corporate must take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area does not subject to the provisions of section 13(1)(g) of the Act, use a section or exclusive use area for a purpose other than for its intended use as

• shown expressly or by implication on a registered sectional plan or an approved building plan
• reasonably be inferred from the provisions of the applicable town planning by-laws or the rules of the body corporate; or
• is obvious from its construction, layout, and available amenities.”

What does case law say?

In the unreported case of Bonthuys and Others v Scheepers CA 303/2006 [2007] ZAECHEC (17 Sept 2007), the High Court of the Eastern Cape reversed the decision of the Magistrate’s Court, granting consent to the owner of a unit in a residential sectional title scheme to run her hairdressing salon. The court allowed the appeal because the lady started the business without obtaining the written consent of the owners in terms of section 44(1)(g) of the Sectional Titles Act 95 of 1986 (the provision that previously dealt with the change of use) and because the refusal of 13 of the owners to grant their consent was not unfairly prejudicial to the applicant. The court followed the court in Cujè-Jakoby & Another v Kaschub & Another 2007 3 SA 345 (C) in interpreting the word “unfairly” where the court found that the words “unfairly prejudicial, unjust or inequitable” denoted conduct which departed from the accepted standards of fair play and that the word “unfairly” should be equated with the word “unreasonably.” The Court found that the prejudice suffered by the other owners far outweighs the prejudice that the applicant may suffer. It was decided that:

• The hairdressing salon would affect the peace and tranquillity associated with a residential scheme. 
• The fact that the applicant created a separate entrance for her clients would compromise the security of the other owners. 
• The evidence did not indicate any value added to the other owners, but rather suggested an adverse effect on the owners. 
• It was stressed that the personal circumstances of the applicant namely that she lost her job because the salon she worked for closed down and that she struggles to support a four-year-old child, did not justify a departure from the established scheme.

Conclusion on the change of use in sectional title

From this discussion, it is clear that a section or exclusive use area cannot be used for another purpose without the written consent of all the owners in terms of section 13(1)(g) of the STSM Act read with PMR 30(f). Such consent should not be unreasonably or unfairly withheld. The members should consider and weigh up whether there will be any prejudicial consequences should the owner be allowed to change the use of their section or exclusive use area.

Written by Dr. Carryn Melissa Durham of Stratafin