EUAs and s 45 – a reply

I refer to A G Farndell's discussion EUAs and s 45 dated 26 February 2009, which discussion was published in the GhostDigest Conveyancing News and Views on 05 March 2009.

Whereas I, too, do not accept the alleged Deeds Office's contention, to the effect that the subject matter of a right to the exclusive use of a part or parts of the common property ("an EUA right"), registered under section 27 of the Sectional Titles Act, 1986 (Act No. 95 of 1986), as amended ("the STA"), is not immovable property, I am, however, unable to accept the validity of the grounds given by A G Farndell also.

In my opinion, because of the special recognition of sectional title ownership and other rights pertaining thereto, introduced by the STA and its predecessor, the answer to the question whether an EUA right is movable or immovable property cannot be found outside of the four corners of the STA.

My non-acceptance of the aforementioned alleged contention by the Deeds Office is based on section 27 (6) of the STA, which provides that: "A right to the exclusive use of a part of common property registered in favour of an owner of a section, shall for all purposes be deemed to be a right to urban immovable property over which a mortgage bond, lease contract or personal servitude of usufruct, usus or habitation may be registered." Moreover, if a mortgagee so wishes, a mortgage bond may be registered over an EUA right without the unit owned by the mortgagor.

In the circumstances, I submit with respect that the rejection of A G Farndell's application for an endorsement under section 45 of the Deeds Registries Act, 1937 (Act. No. 47 of 1937), as amended, was erroneous and unfortunate.

Thabo Nqhome
6 March 2009