C&A Friedlander Attorneys

When purchasing an apartment in a Sectional Title Scheme, your Agreement of Sale most likely refers to your parking bay, balcony or garden as an Exclusive Use Area – what is an Exclusive Use Area and how does this differ from the section that you own?

The Sectional Titles Scheme Act 65 of 1986 (“the Act”) defines an Exclusive Use Area as a part or parts of the common property for the exclusive use by the owner or owners of one or more sections.

To allow owners to acquire rights to the exclusive use of a particular portion of the common property Exclusive Use Areas are created.

Creation of an Exclusive Use Area

When the Developer opens the Sectional Title Register, they may choose to delineate the exclusive Use Areas on the Sectional Title plans approved by the Surveyor General, or they may choose to allocate Exclusive Use Area’s in terms of the Rules of the Scheme.

If the Exclusive Use Area is delineated on the Sectional title plans, the Developer may take out a Certificate of Real Right in respect of each Exclusive Use Area, which in turn can be ceded to the future purchasers. An Exclusive Use Area held by a Notarial Deed may be individually alienated. In other words, it can be sold (usually restricted to an owner of another section in the scheme) and it may also be mortgaged by the owner.

An Exclusive Use Area allocated in terms of the rules cannot be mortgaged and cannot be dealt with independently from the section. Such Exclusive Use Areas are allocated to the section specifically and not the respective owner. You have no right of ownership, rather only the right to the exclusive use of the specified portion of the common property.

Another option for the creation of Exclusive Use Areas, is that once the scheme is established the Body Corporate and the owners in the scheme may allocate an Exclusive Use Area by means of an amendment to the Management Rules. Such an amendment would require a unanimous resolution authorising the allocation of the Exclusive Use Area in terms of the Management Rules.

In addition, the Body Corporate may arrange for a Land Surveyor to delineate an Exclusive Use Area in accordance with Section 27(2) of the Act and then cede the newly created Exclusive Use Area to the purchaser thereof. The Body Corporate would again require a unanimous resolution authorising it to create and cede the new Exclusive Use Area in accordance with Section 27(3) of the Act.

How Exclusive Use Areas differ from Common property

Common property is defined in the Act as the land in the scheme, parts of the building or buildings not forming a part of any section, as well as any land acquired by the Body Corporate in accordance with Section 26 of the Act.

As an example, in a Sectional Title Scheme your common property would be the corridors between the sections, a pool, any communal courtyard or garden area and the parking lot.

Rights of the Exclusive Use Area holder

Section 13(1) of the Sectional Titles Schemes Management Act 8 of 2011 (“STSMA”) outlines the duties of owners in Sectional Title Schemes.

With regards to their Exclusive Use Area, an owner must:

a) Allow any person authorized in writing by the Body Corporate, during reasonable hours and on notice (unless it is an emergency) to enter the Exclusive Use Area for the purpose of inspecting and maintaining, repairing or renewing pipes, wires, cables and ducts existing in the section and capable of being used in connection with the enjoyment of any other section or common property, or for the purpose of ensuring that this Act and the rules are being observed.

c) Keep it in a clean and neat condition;

d) Use and enjoy the common property in such a manner so as to not interfere unreasonably with the use and enjoyment thereof by other owners or other persons lawfully on the premises;

e) Not use their Exclusive Use Area, or permit it to be used, in a manner or for a purpose which may cause a nuisance to any occupier of a section;

g) When the purpose for which an Exclusive Use Area is intended to be used is shown expressly or by implication on or by a registered sectional plan, the owner must not use nor permit the 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.

Further, Rule 30 of the Management Rules contained in Annexure 1 of the STSMA provides that the body corporate must take all reasonable steps to ensure that a member or any other occupier of an exclusive use area does not:

a) Use the common property so as to unreasonably interfere with other persons lawfully on the premises, in breach of section 13(1)(d) of the STSMA;

b) Use a section or Exclusive Use Area so as to cause a nuisance, in breach of section 13(1)(e) of the STSMA;

c) Contravene the provisions of any —

i. law or by-law relating to the use of a section or an exclusive use area; or

ii. conditions of a license relating to use of the building or the common property, or the carrying

iii. on of a business in the building; or

iv. conditions of title applicable to sections or exclusive use areas;

d) Make alterations to an Exclusive Use Area that are likely to impair the stability of the building or interfere with the use and enjoyment of other sections, the common property or any exclusive use area;

e) Do anything to an Exclusive Use area that has a material negative affect on the value or utility of any other section or Exclusive Use Area;

f) Subject to the provisions of section 13(1)(g) of the STSMA, use a section or Exclusive Use Area for a purpose other than for its intended use as —

i. shown expressly or by implication on a registered sectional plan or an approved building plan;

ii. can reasonably be inferred from the provisions of the applicable town planning by-laws or

iii. the rules of the body corporate; or

iv. is obvious from its construction, layout and available amenities;

g) 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 STSMA and the 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.

We hope the above has provided clarity as to what it means to own an Exclusive Use Area by a means of a Notarial Deed versus an Exclusive Use Area allocated in terms of the Rules.

Should you have any Sectional Title or Exclusive Use Area queries, please contact our Conveyancing Department to assist you further.

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. Errors and omissions excepted (E&OE)

Claire Daly
C & A Friedlander Inc.- Property & Developments Law