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Structuring a section

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At a time when space comes at a premium, our experts encounter issues relating to sectional title complexes with increasing frequency.

One such issue relates to the structural status of wendy houses and lapas erected on exclusive use areas.

A reader would like to know how such structures affect participation quotas and whether they need to be registered with the Surveyor-General.

“In terms of the Sectional Titles Act, a sectional owner acquires ownership of his or her section and joint ownership of the common property in the scheme,” says Charlotte Vermaak from Chas Everitt in Port Elizabeth.

Vermaak says the section is constituted by the flat, apartment or house itself. The common property, on the other hand, refers to the area outside of and around the flat, apartment or house and is owned by all the owners in undivided shares.

“However, as we have discussed before, it is possible to provide an owner of a section with the exclusive use of a certain part of the common property,” says Vermaak. “The other owners are thus excluded from and denied the use and enjoyment of that part.”

According to Vermaak, such areas could include, for example, gardens, parking spaces and storage areas. “It is in these areas that a wendy house or lapa would then be erected by the owner.”

It is important to remember that the body corporate is responsible for the maintenance of exclusive use areas but that the owners holding the rights bear all costs associated with these areas, says Vermaak.

“An owner has to seek permission from the trustees to make changes to the exclusive use area. However, the change may not constitute an extension of this section or the creation of a new section.”

Charl Crous from Du Toit Strömbeck Attorneys in PE says the participation quota quantifies an owner’s share in the common property and therefore determines his or her say in the management of the scheme.

“It also provides a base for determining his or her financial obligation regarding the administrative expenses and maintenance of common property.”

Crous says that, under South African law, the size of a section is used to calculate the owner’s participation quota in a residential scheme. “The floor area of the section is divided by the aggregate floor area of all sections in the scheme.”

Whether or not a wendy house or lapa forms part of a section is an interesting question, says Crous.

“Non-adjoining rooms and structures, like tool sheds and garages, can form part of a section because Section 5 of the Act stipulates that a section may consist of non-contiguous parts of a building or buildings.”

Should an owner wish to extend the floor area of his or her section, the steps prescribed by the Act must be followed and permission obtained via a special resolution of the body corporate, says Crous.

“Once the formalities have been met and municipal approval for the structure obtained, an amended sectional title plan must be approved by the Surveyor-General and registered with the deeds office. The amended plan will include a new participation quota schedule.”

Crous says a wendy house or lapa may, depending on the nature of the structure, be classified as a “building” and thus extend the participation quota.

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Fullstop

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