C&A Friedlander Attorneys

A Notary Public is an admitted attorney who has passed the competency examination for Notarial Practice and is recognised as a Notary Public by the High Court of South Africa. The Notary Public is internationally recognised, unlike an admitted attorney, and enjoys high regard. However, they are subject to stricter norms and held to a higher standard of conduct. Although the primary duties of a Notary are similar to those of an attorney, the responsibility that is placed on a Notary is far more stringent.

Certain documents are required by law to be notarially executed, which means the client must personally sign the document in the physical presence of a Notary Public. Examples of such documents are notarial bonds, antenuptial and postnuptial contracts, notarial servitudes, deeds of cession of usufruct, trust deed of donation, and notarial cession of exclusive use areas.

Notarial deeds executed by a Notary Public must be kept by that Notary for safekeeping. All such documents must be recorded in the Notary’s protocol as proof that the documents have indeed been drafted and attested to in their presence.

The concept ‘sectional title’ describes separate ownership of units within a complex or development. When you buy into a sectional title complex, you purchase a section or sections together with an undivided share of the common property.

Exclusive Use Areas in a sectional title scheme are defined in the Sectional Titles Act as ‘a part or parts of the common property for the exclusive use by the owner or owners of one or more sections.’

When purchasing in a sectional title scheme, you become the registered owner of the section / unit you are buying, but you do not obtain ownership rights for your Exclusive Use Area. Some examples of Exclusive Use Areas include parking bays, garages or storerooms. To acquire the right to the exclusive use of a particular portion of the common property, an Exclusive Use Area must be created using a Notarial Deed of Cession, which is to be executed in the presence of a Notary Public.

The purpose of the Notarial Deed of Cession is to allocate a portion of the common property for exclusive use and enjoyment to a registered owner of a section within the sectional title scheme. Therefore, you have to be an owner of a section in a scheme to be a co-owner of the common property and thus become entitled to have an Exclusive Use Area allocated to you. One of the reasons to structure a scheme in this manner is to ensure the Body Corporate retains ownership rights in the Exclusive Use Areas. However, the owner of the cession is responsible for the costs associated with the area’s upkeep whilst enjoying the associated exclusive rights.

While an owner does not ever obtain full ownership rights to an Exclusive Use Area when same is ceded to them, they do hold the right of use in terms of the Notarial Deed, but temporarily as same will have to be ceded to the next owner when the unit is sold. A Notarial Deed of Cession can be seen as ownership to the extent that the Exclusive Use Area may be individually alienated. In other words, it can be sold (restricted to an owner of another section in the scheme), and it may also be mortgaged by the owner when purchasing a unit in the sectional title scheme.

If an Exclusive Use Area is not allocated in terms of a Notarial Deed, then the area can be allocated by the scheme’s Body Corporate’s Management Rules. A unanimous resolution is required by its members to achieve this. Still, then the right of access is merely granted by a rule that allocates the designated area to a particular section for a particular period.

Both a Notarial Deed of Cession and allocation in terms of the Management Rules assigns the Exclusive Use Area to the unit/section itself, and not to the respective owner. However, the most significant difference between the two is that Exclusive Use Areas allocated in terms of the rules cannot be mortgaged and cannot be dealt with independently from the section. There is no right of ownership or even an element thereof. The Management Rules can also be amended by a unanimous resolution of the Body Corporate, which means your right is essentially subject to the rules and decisions made by the Body Corporate from time to time.

As such, a Notarial Deed of Cession is viewed as having more substantial ownership rights because it is a right capable of being registered at the Deeds Office, which is why it is required to be executed in the presence of a Notary Public. Notaries are regarded as specialists in the drafting of and legalisation of documents. The presumption is that a document’s content and accuracy can be assumed when drafted and executed by a Notary Public.

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).