Section 4(2) application

It often occurs in practice that a sectional title scheme is opened on more than one piece of land. In terms of the repealed Sectional Titles Act 66 of 1971, these properties had to be consolidated before a sectional title scheme could be opened. The Sectional Titles Act, 95 of 1986, however, provided some relief in this regard, as it was found that it is not always possible to consolidate properties, given the provisions of section 40 of the Deeds Registries Act 47 of 1937.

The relief afforded is contained in section 4(2) of the Act and reads as follows:

“A scheme may relate to more than one building situated, to be erected or being in the process of erection on the same piece of land, or on more than one piece of land, whether contiguous or non contiguous: Provided that the building or buildings to be divided into sections shall be situated only on one such piece of land or on two or more such contiguous pieces of land registered in the name of the same person and which have been notarially tied.”

From the phrasing of section 4(2) of the Act it is clear that a sectional title scheme may consist of one building only; or more than one building. Furthermore, the sectional title scheme may be developed on one piece of land; or on more than one piece of land. Where the scheme comprises more than one piece of land, the respective pieces of land may even be non contiguous. However, where the scheme is developed on more than one piece of land, all the buildings to be divided into sections (i.e. not the buildings to be categorized as common property only, e.g. the club house; the restaurant; the laundry, etc) must be:

•  either on one of the respective pieces of land; or
• if on more than one piece of land,
  • all the land on which buildings to be divided into sections are, must be situated contiguous to one another; and in such instance
  • the so affected pieces of land must be notarially tied. This does not imply that all the buildings in the scheme must be erected on either one piece of land or only on contiguous pieces of land. The piece(s) of land not to be divided into sections may also have buildings on, provided such buildings will be common property only.

The notarial tie agreement is effected by means of a bilateral notarial deed to be executed by the owner of the land to be tied (the developer) or his/her duly authorized agent as the one party to the agreement and the person entitling to enforce the restriction, usually the local authority concerned, or its duly authorized agent. The notarial deed must be registered in the deeds registry against the affected properties, prior or simultaneously with the opening of the sectional title register.

Where a sectional title scheme is to be opened on more than one piece of land it will not be necessary to consolidate the properties. Where the scheme comprises more than one piece of land, but all the sections are erected on only one of such pieces, no further act of registration in the form of a notarial tie agreement is required. However, should the sections be on more than one piece of land, and such pieces of land are contiguous (adjacent) then a notarial tie agreement is a pre requisite.

Note: Where the pieces of land are not contiguous, for example separated by a road, sections may not be erected on both the pieces of land and a notarial tie agreement is not a prerequisite.

Allen West
MacRobert Attorneys