- In all the different articles (see Total recall a response - 4 and earlier articles) on sectional title rights of extension published recently and, for that matter, in the judgments referred to, no one has made a correct reference to what the true intention of the legislation is. At the end of the day it must be about whether existing owners are in any way prejudiced. For example Mr West in his article talks about a developer erecting bigger units. It is quite possible that if a developer were to build bigger and better units than those in the first phase that it would actually enhance the value of the whole development including increasing the value of the existing units in the first phase. That surely is the test and why should any owner in the first phase be aggrieved?
- So you could have a situation where an application is made to court and which is served on every one of the existing owners who are actually delighted with the deviations because they increase the value of the whole development including their sectional title units and therefore they do not oppose the application. On the articles I have seen and on the case law referred to, the enhancement in value and the fact that no one has objected (go further and deal with the situation where all the existing owners file affidavits in support of the application), the court would have to reject the application on the basis that there have been no changed circumstances as envisaged in the Act! The fact that existing owners support the application is irrelevant.
- It really is a question of reading Section 25(2) together with 25(13) and it is my view that the legislature did not intend to put a straightjacket around everything per Section 25(2) but having regard to 25(13) clearly there would also be an exception where no one is prejudiced, there are no aggrieved existing owners and the indisputable facts are that the existing first phase values will be enhanced. Judges who have never been involved in property development do not appreciate all the possibilities and sometimes get their judgments wrong.
STRAUSS SCHER INC.