Before proceeding with a discussion of the documents that must be lodged at the deeds registry, the following is of importance:
Does the right exist?
First and foremost one has to determine from the title of the real right whether the right has in fact been reserved, and furthermore, whether the period for which the right was reserved has not as yet expired. Where the right has already expired the provisions of section 15B(1)(d) must be applied and the right created de novo.
Is the extension within the boundaries of the reserved right?
One has to determine whether the extension anticipated falls within the area of the common property initially reserved. It is the duty of the Registrar and conveyancer to determine whether the extension resorts within the physical boundaries of the reserved right. This one would be capable of establishing by comparing the plan to scale of the building or buildings to be erected as provided for in section 25(2)(a), filed in the deeds registry, with the sectional plan of extension. Should the area not coincide, the extension cannot be registered.
In terms of CRC 2 of 2012 and 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 is not the duty of the registrar to determine whether the buildings are in accordance with the building plans, as changed circumstances can have an effect on the extension. However, the Registrar must determine as to whether the right of extension falls within the specified area of common property. If he/she is unable to ascertain this, proof from a Surveyor or Architect can be requested.(see CRC 2 of 2012)
Should the above two criteria have been met, the following must be lodged with the Registrar for the opening of the sectional title register for the phase development:
Lodgement Cover No. 1 (Yellow Cover)
- The sectional plan of extension (in duplicate).
- The application by the developer drafted in accordance with prescribed Form O.
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The certificate of real right of extension (title of the right).
Note: In certain offices the sectional plans are lodged in a separate yellow cover
Lodgement Cover No. 2 (Yellow Cover)
If the real right of extension is mortgaged, the bond together with the consent of the bondholder for the disposal of the bond, i.e. cancellation, etc. However, where the bond is not cancelled or released, but the bondholder consents to the substitution of the land for the sections etc., the bond and consent will be lodged with the documents alluded to in cover No 1.
Lodgement Cover No. 3 (White Cover)
This cover will contain the certificate of real right issued to the developer of the exclusive use areas depicted on the sectional plan of extension.
Lodgement Cover No. 4 and further (White Cover)
This cover will contain the certificate(s) of registered sectional title in favour of the developer, as per the sectional plan of extension.
General
It must be noted that should the developer wish to impose conditions tying the units and exclusive use areas, it can be effected by virtue of a notarial tie agreement once the body corporate has come into existence or it must be created on eventual transfer of the unit and the exclusive use area (see RCR 36 of 2004).
Allen West
Property Law Specialist
MacRobert Incorporated
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