In terms of the Sectional Titles Act, 1986 (as amended) (“the Act”), there are two methods in terms of which exclusive use areas may be conferred. Purely based on the 1986 Act and without consideration of the 1971 Act these two methods are contained in:
- Section 27A which are the commonly referred to “rule created” exclusive use areas wherein exclusive use areas may be created by either the body corporate or the developer by way of a management or conduct rule and conferred in terms thereof; or
a) By way of section 27(1)(a) in terms of which the developer imposes a condition in terms of section 11(2) in the schedule referred to in section 11(3) with reference to the applicable delineated part of the common property as reflected on the sectional plan; or
b) section 27(2) in terms of which the body corporate, duly authorised thereto by a unanimous resolution of its members, subject to the provision of section 5(1), may request an architect or land surveyor to apply to the Surveyor-General for the delineation thereof on a sectional plan. The aforesaid right referred to in section 27(2) shall then be transferred by the body corporate, duly authorised thereto by way of a unanimous resolution of its members.
The question now arises as to what procedure and resolution is required in the following scenarios where a section 27(1) exclusive use area is affected due to either an oversight or failure by the transferring attorney (conveyancer) to cede the right simultaneous with transfer of the section?
If the developer ceases to be a member of the body corporate and any rights still registered in his/its name to the exclusive use area vests in the body corporate in terms of section 27(1)(c) and the rights are not ceded prior to ceasing to be a member.
If an owner ceases to be a member of the body corporate and any right to an exclusive use area still registered in his or her name vests in the name of the body corporate free of any mortgage bond or registered real right in terms of section 27(4) (b) .
The Sectional Titles Act is unclear and contains no reference to the procedures to be followed in either of the above scenarios.
To simply follow the opinion that a unanimous resolution of the members of the body corporate is required purely because section 27(2) of the Act refers thereto is incorrect due to the fact that section 27(2) deals with the creation of the right.
The section reads as follows:
27(2) 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 …]
It is clear from the above wording that a unanimous resolution is required to create these rights ab initio. Only when they have never existed before.
When this right that was previously created by the body corporate (by passing a unanimous resolution from the members and the having it delineate on a sectional plan), then vests ex lege in the body corporate due to failure to deal with it in accordance with the Act, it is not required to be re-created at all. It continues to exist, however it simply now no longer vests in the name of [the developer or] the previous registered owner whom no longer is a member of that same body corporate even if the deeds registry records reflects the right to be registered in [ the either the developer or the previous registered owner.
The Act clearly deals with the process to follow in order to obtain a certificate of title.
Section 27 (4)(c) contains the process to follow in order to have the certificate of title issued in the name of the body corporate in that it states If a right to the exclusive use of a part or parts of the common property vests in a body corporate in terms of paragraph (b), the body corporate shall, in the prescribed form—
- apply to the registrar for the issuing of a certificate or certificates of real right of exclusive use in its favour; and
- submit a certificate to the effect that the provisions of any law in connection with the vesting have been complied with.
In terms of section 27(4)(d) - The registrar must issue such certificate or certificates in the prescribed form.
There is therefore no requirement in the Act that demands a unanimous resolution in order for a body corporate represented by the trustees to apply for the issue of a certificate aforesaid where the section 27(1) right already exists.
In fact the body corporate is in terms of the Act and rules as contained in the Act required, obliged and empowered in terms of section 37(1)(r ) and section 38(j) firstly in general, to control, manage and administer the common property for the benefit of all owners and secondly to do all things reasonably necessary for the enforcement of the rules and for the control, management and administration of the common property.
Therefore, where an error in registration occurs and a right has not been ceded as referred to in this article it is the writers opinion that the Act does not require a unanimous resolution to apply for the said certificate due to the vesting in the name of the body corporate but that the a simple trustees resolution is required due to the fact that it is within the function and powers of the trustees to administer and manage the common property for the benefit of all of the owners.
When a person buys a section in the scheme which also includes a right to exclusive use area in terms of section 27(1), it is clearly in the buyer and all owners' interest that the body corporate then acts in accordance with its administrative tasks.
No special or unanimous resolution is therefore require but in fact a simple trustee’s resolution.
This will greatly reduce the delay in correcting such errors and should be inserted for clarity sake into the Act as a provision.