Section24 of the Sectional Titles Act 95 of 1986 (hereinafter referred to as “the Act”) provides for the extension of a section. Section 24(3) stipulates that “If an owner of a section proposes to extend the boundaries or floor area of his or her section, he or she shall with the approval of the body corporate, authorised by a special resolution of its members, cause the land surveyor or architect concerned to submit a draft sectional plan of the extension to the Surveyor General for approval.” First and foremost, the Act provides for the extension of the boundaries and also for the extension of the floor area. In this article the difference between the extension of boundaries of a section, and the extension of the floor area of a section will be clarified.
It is presupposed that the extent of a section will always increase when a section is extended, but will this always be the case? Apparently not. Section 24(4)(b) provides the following: “in the case of the floor area of the section in question being increased by the extension, a revised schedule, in substitution for the schedule referred to in section 7(2)(b), reflecting the participation quotas of all the sections as modified after taking the increased floor area of the section in question into account’ This clearly indicates that a section can be extended without increasing the floor area.
The question begging an answer is how is it possible to extend a section without increasing the floor area? This can be achieved when a section is extended by increasing the height of the section, without adding a second floor:
In the above scenario it will be a matter of extending the boundaries and not increasing the floor area, as referred above. Extending the boundaries of a section will therefore not necessarily have the effect of increasing the floor area.
In terms of section 24(3) of the Act a draft sectional plan of extension of the section must be submitted to the Surveyor General, which plan must be accompanied by the documents referred to in section 24(4). However, in this case the schedule reflecting the participation quotas (PQ schedule) need not to be submitted to the Surveyor General as the PQ will not be affected as there is no increase in the floor area [section 24(4) (b)]. Must the above extension of a section be registered in a deeds registry if the extension does not have the effect of increasing the floor area? Section 24(7) stipulates that “the registrar of deeds shall register the sectional plan of extension of a section, and make on appropriate endorsement on the title deed , if the floor area of the section is increased by the extension’
Does this create the impression that the plans need not be lodged at all where the floor area is not increased, or must the plans be lodged in all instances, and the title deed only be endorsed where there is an increase in the floor area? In order to update the deeds registry’s records, it is submitted that the plans should be lodged and the title deed endorsed to indicate that the section is now indicated on an amended plan, clearly stating whether the floor area has increased or not.
Extending the section by increasing the floor area is self- explanatory and need not be discussed in detail. In such cases the extension can be vertical (adding another floor) or horizontal (adding another room or enlarge an existing room).
The following documents must be lodged for the registration of the sectional plan of extension, as mentioned above, i.e. if the floor area is increased by the extension:
- An application in the prescribed form “0” as provided for in regulation 23(l) of the Act. The owner merely applies for the registration of the sectional plan of extension of the section, being the “amended” sectional title plan, depicting the new/altered section. Where only one plan is provided for the extension of numerous sections belonging to different owners, it is permitted to lodge one application in one lodgement cover, setting out the different owners, or different applications. One fee will be payable. However, all the extensions must be registered simultaneously as only one plan is provided. Refer to RCR 61 of 2009 in this regard.
- Two copies of the sectional plan of extension approved by the Surveyor General. A revised schedule reflecting the participation quotas (PQ sheet) of all the sections must be lodged as the floor area of the section is being increased in terms of(section 24(4)(b) of theAct) (also refer to discussion below). As mentioned above, the plans should also be lodged if the floor area has not been extended in order to update the records.
- The sectional title deed of the section to be extended;
- All bonds registered over the section, no consents of bondholders need to be lodged;
- Certificate from conveyancer stating that there is not a deviation of more than 10 per cent on the participation quota of any section as a result of the extension, or if there is a deviation of more than 10 percent, that the mortgagee of each section in the scheme has consented to the registration of the sectional plan of extension of a section (section 24(6)(d)). Uncertainty has prevailed as to the calculation of the 10 per cent in the participation quota of any section as a result of extension. In certain instances the calculation is only done on the section being extended and not in respect of the other sections in the scheme. At a registrars’ conference that was held in 2009 it was resolved that the calculation must be done in respect of the section that is being extended, as well as the other sections in the scheme (RCR 64 of 2009).
- A transfer duty receipt, as an extension of a section (where the floor area is increased) is tantamount to an ‘acquisition’ and a ‘transaction’ as defined in the Transfer Duty Act 40 of 1949. Refer to RCR 40 of 1989 in this regard; and
- Other prescribed documents as referred to in section 24(6) (e) of the Act.
- According to section 24(3), the extension of a section must be authorised by a special resolution of its members, but it is not necessary to lodge the resolution in the deeds registry (CRC 18 of 1997).
Which sheets of an approved sectional title plan must be lodged in a deeds registry in respect of the application for the registration of extension of a section? Usually only the floor plan and the participation quota sheet need to be lodged. It was not necessary to lodge the block plan. However, a question was raised as to how the examiners will be able to determine whether the extension of the section encroaches on the real right of extension or on any adjacent property. The registrars therefore resolved that the block plan must also be lodged, but if the block plan has not changed and there is a note on the floor plan to that effect by the surveyor or architect, it need not to be lodged (RCR 62 of 2009).When will a block plan be changed with the extension of a section and when not? When a section is extended vertically, it may not change the block plan. However, should there be an encroachment on a higher level, e.g. a balcony encroaching on adjacent land, it must be indicated on the block plan and it must be lodged. Where a section is horizontally extended, it can be argued that a block plan will always have to be lodged.