Introduction
The community property element of sectional title schemes comes into play when we refer to common property. Common property includes all the land and those parts of the buildings that are not included in the sections. The body corporate must maintain the common property (while owners must each maintain their section).
No section owner can exclusively own common property, and the owners of all sections in the scheme jointly own all the common property in undivided shares proportionate to their participation quotas (“PQ”). It is possible for the body corporate to restructure and reallocate common property legally, by creating exclusive use areas.
Exclusive use areas
A defined part of the common property (such as a garden) can be reserved for the exclusive use of a particular owner. An owner who has exclusive use rights to an area does not acquire ownership of that area as it continues to form part of the common property.
An exclusive use area is defined in both the ST and STSM Acts to mean a part or parts of the common property for the exclusive use by the owner or owners of one or more sections. An exclusive use right gives the owner or occupier of the unit the right to use and enjoy a specific part of the common property to the exclusion of all other owners and occupiers. Examples of exclusive use areas include balconies; patios; gardens; parking bays and roof spaces for the installation of solar panels.
Two ways to create exclusive use areas
Exclusive use rights can be created in two ways. In the first place, exclusive use rights can be created in terms section 27 of the ST Act. These are registered rights to real property recorded in the Deeds Registry. A holder of such right has absolute rights that he or she can enforce against any other person at all by instituting legal proceedings. Where the developer did not initially reserve the rights to exclusive use, the body corporate may on the authority of a unanimous resolution apply to the Surveyor -General to have indicated to the sectional plan that exclusive use areas are reserved for the use of specific owners. These real rights to exclusive use are then ceded notarially by the body corporate to the owners.
In the second place, exclusive use rights can also be conferred by rules made under section 10(7) and (8) of the STSM Act. These exclusive use rights are considered to be personal rights, and are only effective against the body corporate of the scheme including all the owners and occupiers of units. The developer or body corporate may adopt management (adopted by unanimous resolution of the body corporate) or conduct rules (adopted by special resolution of the body corporate) which confer rights of exclusive use and enjoyment to parts of the common property upon members of the body corporate. Such a rule must include a layout plan to scale that clearly indicates the locality of the distinctively numbered exclusive use area and the purpose for which it is to be used as well as a schedule indicating to which owner each such part is allocated.
Maintenance of exclusive use areas
The body corporate retains the primary responsibility to organise for the maintenance of common property that is subject to exclusive use areas. However, the body corporate must require the owners of sections entitled to the right to the exclusive use of a part or parts of the common property, whether or not such right is registered or conferred by rules, to make such additional contribution to the funds as is estimated necessary to defray the costs of rates and taxes, insurance and maintenance in respect of any such part or parts, including the provision of electricity and water, unless in terms of the rules the owners concerned are responsible for such costs. Therefore, the responsibility to pay for the maintenance for the part of the common property that is subject to exclusive use is transferred to the owner who has the benefit of the exclusive use area. This is the position unless the rules specifically state otherwise.
Improvements to exclusive use areas
An improvement to an exclusive use area is defined as the construction or placement of any structure or building improvement on an exclusive use area. Owners who hold exclusive use areas often wish to make improvements to these areas, such as the installation of roof louvre type structures over patios and garden areas; or the installation of a carport over their exclusive use parking bay; or the installation of a bricked braai area in their garden.
PMR 30(g) 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 construct or place any structure or building improvement on an exclusive use area which in practice constitutes a section or an extension of the boundaries or floor area of a section without complying with the requirements of the STSM Act and the ST Act; provided that the body corporate may by ordinary resolution
(i) give consent for such a structure or building improvement, if they are satisfied that it does not require compliance with such requirements;
(ii) prescribe any reasonable condition in regard to the use or appearance of the structure or building improvement; and
(iii) withdraw any consent if the member or other occupier of a section breaches any such condition.
Conclusion
Creating and allocating exclusive use areas transfers the financial responsibility from the body corporate to the person that gets the beneficial use of the common property. Restructuring common property in this way therefore places the burden where the benefit lays.
WRITTEN BY DR CARRYN DURHAM
