The deviation from the section 25(2)(a) and (b) plans when exercising a real right of extension has been a matter that has been deliberated on at length by our Courts and Registrars of Deeds. Recent case law, in my opinion, has now finally put this thorny issue to rest.
In the case of Dolphin Whisper Trading 10 (PTY) LTD v The Registrar of Deeds and another (20645/08) [ZAWCHC] dated 3 March 2009, it was held that there is not sufficient evidence of changed circumstances, the real right of extension has to be exercised strictly in accordance with the section 25(2)(a) and (b) plans. This case literally put the cat among the pigeons and developers had to approach the Court when any deviation from the section 25(2) plans occurred.
In the judgement of Roseparkadmin CC and others v Registrar of Deeds (WCHC) Case No 5522 dated 17 May 2011, it was held that section 25(13) of the Act allows the Developer to deviate, in instances of changed circumstances, from the section 25 (2)plans and an owner who feels prejudiced may alone apply to court. It was further held that the Act does not require the developer to first obtain the courts sanction for such deviation.
Two conflicting decisions on which Registrars had to implement a uniform practice.
Registrars of Deeds at their annual conference in 2011 took cognizance of the Roseparkadmin case, but felt it prudent to expand on the decision and to usurp the duty to ensure that the exercising of the real right of extension is within the physical boundaries of the reserved right (RCR12 of 2011).
The Chief Registrar furthermore issued a directive providing that proof must be submitted that the real right is exercised within the “foot print” on which the reservation took place, which proof must be in the form of a certificate from a surveyor or architect (see CRC 2 of 2012).
Recent Case Law
In terms of the most recent case in this regard, namely the unreported case of Hartenbos Woonwapark CC v Registrar of Deeds and others, Case No 3273/2017 dated 29 May 2017, the court held as follows:
“I cannot agree that the developer’s failure to divide the sections strictly according the site development plan due to the changed circumstances amounts to non-compliance with the provisions of the Act. Although the Act requires the sections to be divided according the site development plan, the Act does envisage that there may be situations where it is not possible to divide the sections strictly according to the site development plan due to “changed circumstances”. The Act, in those instances, provides remedies to the owners of the units who may be affected by the deviation to approach the court.
I agree with the applicant’s submission that section 25(13) of the Act relates to situations where an owner of a unit in a scheme takes issue with a deviation, and approaches the court for an order obliging the developer to properly comply with the terms of the reservation or any other relief which the court may deem fit, including an award for damages. It is clear from reading of section 25(13) of the Act that this section is not concerned with the power of the Registrar of Deeds to refuse to register the transfer nor the court’s approval of the transfer of a unit which is subject”
Where the real right is clearly defined on a diagram, the exercising of the real right may not exceed the boundaries or encroach on other common property in the scheme. However, where no diagram exists, but merely a sketch plan, it is not incumbent on the Registrar of Deeds to police the foot print.
Property Law Consultant
Tonkin Clacey (Pretoria)
Thanks Allen, for this. Although the judgement is to be welcomed, and is what conveyancers have been arguing for years, it does seem to be a rather confusing judgement, with respect to the Court. It seems to suggest that the registration of the extension of the scheme was permitted, but that the Registrar then refused to permit the transfer to be registered. While your comments on the building footprints being crucial where the rights of extension were delineated on a diagram approved by the SGO are indisputable, it has been our contention from the outset that in all other respects the extension of the scheme, and whether or not it complies - not only with the layout plan - but also all the other requirements of section 25(2) has nothing to do with the Registrar.