How are the boundaries of a real right of extension defined?
Section 25(1) of the Sectional Titles Act 95 of 1986 (the Act) affords a developer the right to reserve the right to erect, complete or to include a building or buildings on a specified part of the common property. The question begging an answer is what is meant by “specified part of the common property”? The plans to scale referred to in section 25(2)(a) and (b) of the Act provide that the plans must indicate inter alia the following:
- The part of the common property affected by the reservation; and
- The manner in which the building or buildings are to be divided into section(s) and exclusive use areas or the manner in which the common property is to be made subject to the right of exclusive use areas only.
There is a school of thought that avers that when the developer exercises his right of extension, it must remain within the “foot print” of such reserved right, meaning that he cannot exceed the ground coverage of the boundaries of the “building(s)” reflected on the section 25(2) plans. It is submitted that this notion is totally wrong. The only requirement that must be met, subject, however, to the provisions of section 25(13) of the Act, is that the building(s) and or exclusive use area(s) must be erected within the boundaries of the “specified part of the common property”. It is thus not the duty of the registrar of deeds to enforce compliance with regard to deviations of the “foot print” of the building(s) erected within the boundaries of the reserved common property. However, it is the Registrar’s duty to ensure that the extension of a scheme is within the physical boundaries of the reserved right (see RCR 2 of 2009 (as amended), and RCR 12 of 2011). Should it not be possible to determine whether the extension is being exercised within the physical boundaries of the reserved right, confirmation of this fact must be sought from the architect or land surveyor concerned (see RCR 61 of 2008).
In terms of the case of Roseparkadmin CC and Others v The Registrar of Deeds (Western Cape High Court Case No. 5522/2011 dated 17 May 2011), it was held that an owner who feels that he is prejudiced by any changes to the building(s) erected within the reserved common property may apply to court.
It was further held in the case of PLC Trust and Others v The Registrar of Deeds Bloemfontein and Others (Case No. 4863/2010), that all the Registrar of Deeds must do to is satisfy himself that all the formalities prescribed by the Act for registration have been complied with. He is not called upon to investigate or decide on the need for any amendment or extension of the scheme.” (par. 18).
From a conveyancing perspective it is merely necessary to determine whether the right of extension has been erected within the boundaries of the specified part of the common property. Where the extension exceeds such boundaries, i.e. where the developer has encroached on areas of the common property not reserved, the extension will have to be cancelled and reserved de novo (see RCR 67 of 2011).
Also of importance to note that a developer cannot reserve a general right of extension, i.e. on all the common property encompassing the sectional title scheme (see RCR 57 of 2011).