What is an exclusive use area?

An untidy backyard, an article written by Tertius Maree was featured in the October 1998 edition of De Rebus. It discusses the complications that have arisen as a result of the following question - what constitutes an exclusive use area? Examples of these complications are: badly drafted documents, owners ignorant of what they have title to and trustees who are unable to deal with even the most basic functions of office.

Need for clear terminology
The author maintains that it is necessary to establish a clear terminology regarding the various types of exclusive use areas. The broadest distinction being between "real exclusive use areas", - those areas delineated on the sectional plan and "minor exclusive use areas", or those areas described in the schedule to the rules. He feels that this distinction is inadequate and goes on to discuss a number of classes of exclusive use areas and pseudo-exclusive use areas.

The first class
Or the real exclusive use areas class. It consists of four varieties, of which the first two are created by the developer and the body corporate under the Sectional Titles Act 65 of 1986. These two are of equal status and must be delineated in the sectional plan. Included in this class are those areas created under the provisions of the Sectional Titles Act 66 of 1971 and "converted" in terms of s 60(3). Finally this class includes exclusive use areas created by the developer, after the opening of a sectional title register in terms of s 27(1A).

He discusses this provision in detail. Basically it allows the developer to create real exclusive use areas after registering the sectional plan, provided that no unit has been transferred to a third party, resulting in the establishment of the body corporate. The main problem with this section is that it is limited by para 14 of CRC 18/1997, which results in preventing the developer from allocating additional exclusive use areas after opening the register.

Other issues include the ambit of the circular, where the author suggests that it be restricted to only those exclusive use areas created by the developer when the register was opened.

The article then looks at the implications of s 27(1A) read with r 29. It has to be assumed that the conveyancer has to deal with the sectional plan by amendment with additional sheets, after it has been approved and registered.

The second class
The second class of exclusive use areas are those "Historic", or exclusive use areas created under the 1971 Act. These too are discussed.

The third class
Consists of "Minor" or exclusive use areas created in terms of the new provisions introduced by s 27A are also examined.

The fourth class
These are "Pseudo" or informal exclusive use areas, that is those that are created by a resolution of the members are debated. Since these are not true exclusive use areas, the trustees cannot collect special levies for their maintenance from the individual "owners".

In conclusion, the author stresses the need for conveyancers and estate agents to be aware of all these problems. The reader is also made aware of ignorance of owners.

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