The Sectional Titles Act 95 of 1986 (the Act) makes provision for exclusive use areas (EUAs) to be created in the following different ways:
The following different ways of creating exclusive use areas will now be dealt with:
Creation of Exclusive Use Areas by the developer subsequent to the opening of the sectional title register (section 27(1A))
Section 27(1A) reads as follows:
Notwithstanding section 27(1)(a), if no reservation was made by the developer in terms of subsection (1) and the body corporate has not yet been established, the registrar may issue a certificate of real right in respect of a right of exclusive use as contemplated in section 12(1)(f) on application by the developer accompanied by the sectional mortgage bond and the written consent of any bondholder.
It is evident from section 27(1A) that the following must apply before the developer can utilize this section to create exclusive use areas:
Save for the conveyancer’s certificate referred to above, the following documents must be lodged:
The bonds that have to be lodged are the bonds which existed upon opening of the scheme, i.e. conventional bonds which are deemed to be sectional bonds upon registration of the sectional title register, also known as the “scheme bonds”. The bondholders must consent to the registration of the sectional plan of exclusive use areas and that it attaches to the certificate(s) of real right in respect of exclusive use areas issued in terms of section 27(1A). The certificate of real right of extension will be endorsed with the sectional mortgage bonds.
Save for the endorsement of the certificate of real right with the sectional mortgage bond, as discussed above, the section 11(3)(b) schedule of conditions must be endorsed to the effect that a sectional plan of exclusive use areas has been registered.
Creation of Exclusive Use Areas by the Body Corporate (section 27(2))
Section 27(2) reads as follows:
A body corporate, duly authorized thereto by a unanimous resolution of its members, may, subject to the provisions of section 5 (1), request an architect or land surveyor to apply to the Surveyor-General for the delineation on a sectional plan in the manner prescribed of a part or parts of the common property in terms of section 5 (3) (f) for the exclusive use by the owner or owners of one or more sections: Provided that no such delineation shall be made on the sectional plan in terms of this subsection if such delineation will encroach upon a prior delineation on the sectional plan of a part of the common property for the exclusive use by one or more of the owners.
The regulations do not address further requirements or the manner in which this section must be dealt with. The only requirement is for the body corporate to obtain a unanimous resolution and to cause a sectional plan to be prepared The following procedure must be followed:
The section 11(3)(b) schedule of conditions must be endorsed to the effect that a sectional plan of exclusive use areas has been registered . The section 11(3)(b) schedule must also be endorsed with regard to the cessions of exclusive use areas.
Rules regarding exclusive use areas (section 27A)
Section 27A reads as follows :
A developer or a body corporate may make rules which confer rights of exclusive use and enjoyment of parts of the common property upon members of the body corporate: Provided that such rules shall -
(a) not create rights contemplated in section 27 (6);
(b) include a layout plan to scale on which is clearly indicated -
(i) the locality of the distinctively numbered exclusive use and enjoyment parts; and
(ii) the purposes for which such parts may be used;
(c) include a schedule indicating to which member each such part is allocated.
Law Lecturer, Deeds Training
Thank you for a very informative article. I am now living in a complex, having purchased ,7 years ago. This development is about 15 years old and can you actually believe that all exclusive use areas have not been registered, nor were plans drawn etc. How could that have possibly happened and how could all transfers of the units even been registered in the first place. This is really bewildering and the developer has since absconded and we are now left with this problem.
As alluded to in the article, not all exclusive use areas need to be registered and indicated on a sectional plan. The informal exclusive use areas are depicted on a sketch plan and allocated to owners in the Rules. However, this does not mean that owners are now ad infinitum restricted to such informal rights. The Body Corporate can have the rights depicted on a sectional plan and cede the rights to the rightful holders. These rights are then deemed to be immovable property capable of being mortgaged etc.