www.MyPE.co.za: This week our panel of experts ventures into the murky waters of common property versus exclusive use areas in a sectional title complex.
A reader writes that he previously owned a unit with an open parking area and obtained written consent to enclose the area.
He later sold this unit and moved to another one in the same complex. The exclusive use of the parking area was included in the sale agreement.
The reader now rents out the unit he owns. Recently, however, a new trustee awarded the exclusive use of the reader’s parking area to another owner in the complex.
He would like to know whether the trustees have the authority to simply allocate an exclusive use area to another person. And, if so, how would the person who had enclosed the parking area be compensated for his expenses?
Charl Crous from Du Toit Strombeck Attorneys in Port Elizabeth says all residents may use the common property in a complex, such as the clubhouse or swimming pool.
“An exclusive use area, however, is a part of the common property that is allocated for the exclusive use of a unit owner or occupier, for example, a garden, balcony or parking bay.”
Crous says there are two ways in which exclusive use areas may be created, as set out in Sections 27 and 27A of the Sectional Titles Act 95 of 1986.
“Section 27 provides for the area to be set out on the sectional title plans and registered in the unit owner’s name by way of a notarial deed of cession at the deeds office.”
As part of the conveyancing process, says Crous, the seller cedes the right to exclusive use to the purchaser.
In terms of Section 27A, says Crous, the establishment of exclusive use areas in the rules of the scheme can be done either at the outset by the developer or by the body corporate at a later stage by means of a unanimous resolution.
Charlotte Vermaak from Chas Everitt Port Elizabeth says many owners think they “own” their gardens, carports and the like when, in fact, they do not. “If the developer has not registered those areas as exclusive use in terms of section 27, then they cannot be ceded to a purchaser.”
However, if the exclusive use of the area has been allocated to a specific unit in the rules, as envisaged in section 27A, Vermaak says the right to exclusive use of the allocated area will automatically pass to a purchaser upon transfer of the unit.
“It is accepted practice that, from a marketing perspective, there is no difference between the value of a unit with a section 27 exclusive use area as opposed to a section 27A exclusive use area.”
Vermaak says that, because the act provides for the allocation of exclusive use in terms of the rules, a trustee cannot simply allocate an area of exclusive use to another owner or tenant in a complex.
According to Vermaak this decision has to be made unanimously by all owners, which does not appear to have been the case in the reader’s scenario.
“The reader should first question the validity of the decision to allocate the parking area to another person and then investigate the situation with regard to being compensated for improvements.”
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