CLAUSE BY CLAUSE ANALYSIS
Clause 1
- The current definition of ‘‘architect’’ refers to the Architects’Act, 1970 (Act No. 35 of 1970), which Act has since been repealed by the Architectural Profession Act, 2000 (Act No. 44 of 2000). The proposed amendment contained in clause 1(a) of the Bill seeks to correct this reference. In addition, there has been uncertainty in respect of which architects are qualified to sign certificates in terms of section 7(2)(a) of the Act, namely a certificate stating that a proposed division into sections and common property is not contrary to any operative town planning scheme, statutory plan or conditions subject to which a development was approved in terms of any law that may affect the development. The proposed amendment provides clarity in this regard.
- The current definition of ‘‘developer’’ provides, for purposes of sections 10 and 15B(3)(c) of the Act, for the inclusion of an agent or his or her successor in title, or any other person acting on behalf of any of the above-mentioned persons, to act on behalf of a developer. However, the definition does not include the developer’s agent or his or her successor in title in respect of the approval of development schemes, as contemplated in section 4 of the Act. The proposed amendment contained in clause 1(b) of the Bill provides for such inclusion.
- The proposed amendment of the definition of ‘‘land surveyor’’ in clause 1(c) of the Bill seeks to clarify which land surveyors may sign a section 7(2)(a) certificate, similar to the position of architects as discussed in par. 2.1.1. It is also intended to reflect the correct short title of the Professional and Technical Surveyors’ Act, 1984 (Act No. 40 of 1984).
Clause 2
The proposed amendment to section 4(3) of the Act is consequential to the amendment of the definition of ‘‘developer’’ that provides for the inclusion of an agent or his or her successor in title, or any other person acting on behalf of any of the above-mentioned persons, to act on behalf of a developer. Clause 2(a) and (b) of the Bill therefore seek to align section 4(3) of the Act with the amended definition of ‘‘developer’’.
Clause 3
Section 14 of the Act deals with the amendment and cancellation of sectional plans. However, the Act is silent on a procedure to follow with regard to the cancellation of a sectional plan upon an order of the court. Clause 3 of the Bill proposes a prescribed manner to be followed with the cancellation of such plans.
Clause 4
Section 15B(5A) of the Act provides for the issuing of a certificate of registered sectional title in respect of a fraction of an undivided share of a section.Aneed has been identified to also include provisions in respect of the application by the owner of a section, as well as the lodgement and endorsement of the relevant bonds and title deeds. Clause 4 of the Bill therefore proposes the addition of new subsections to section 15B.
Clause 5
- Section 17 is silent with regard to the lodgement of the consent of owners of sections and holders of registered rights over sections with the registration of a transfer of a part of the common property. Section 17 also does not provide for the lodgement of the relevant title deeds of the sections and real rights for purpose of endorsement to reflect the new extent in the amended participation quota schedule, as a result of the transfer of a part of the common property. The amendments proposed in clause 5(a) and (b) of the Bill seek to address the situation.
- Section 17 makes provision for the cancellation of the registration of a section or part thereof, as well as the cancellation of the registration of an exclusive use area or part thereof, with the registration of a transfer of a portion of the common property. The section, however does not provide a mechanism for the alienation of a portion of the common property on which a real right of extension or part thereof is registered. The proposed insertion of subsection (4C) as contained in clause 5(c) of the Bill will rectify this situation.
- Section 17(5) of the Act provides for the title deeds of units, title deeds of rights registered over such units and the title deeds of exclusive use areas to be lodged for cancellation upon transfer of the whole of the land comprised in the common property. Section 17(5) is, however silent with regard to the consent of holders of registered rights over exclusive use areas and the lodgement of such title deeds for purposes of cancellation. The amendments proposed in clause 5(d) of the Bill seek to address this issue.
Clause 6
Section 18 of the Act makes the provisions of the Deeds Registries Act, 1937 (Act No. 47 of 1937), applicable with the transfer of a mortgaged unit and mortgaged common property, and the cession of a mortgaged lease of a unit and mortgaged real right over a unit. The said section, however, is silent in respect of the cession of mortgaged real rights of extension and mortgaged real rights of exclusive use areas. Clause 6 of the Bill provides for the necessary inclusion.
Clause 7
Section 19 of the Act deals with the expropriation of common property or rights therein, as well as the cancellation of the registration of a section affected by such expropriation. The Act, however, does not provide for the cancellation of the registration of part of a section pursuant to an expropriation. Clause 7(a) and (b) of the Bill contains proposed amendments aimed at rectifying the situation.
Clause 8
- Section 25(1) of the Act provides for the extension of schemes upon unanimous resolution of the body corporate and bondholders. However, bondholders do not form part of the ‘unanimous resolution’ of a body corporate. The amendment of section 25(1) to provide for the consent of the bondholders that exist on the date of the taking of the unanimous resolution, as contained in clause 8(a) of the Bill, aims to clarify the position.
- Section 25(4) of the Act provides for a right of extension, as reserved by a developer in terms of section 25(1) or vested in a body corporate in terms of section 25(6), to be deemed immovable property that is capable of being mortgaged and transferred. Section 25(4), however does not include a right of extension that may be obtained by a developer in terms of section 25(6A). A section 25(6A) right of extension may be obtained in instances where a developer has not reserved such right in terms of section 25(1) and where a body corporate has not been established. Clause 8(b) of the Bill seeks to rectify this situation.
- The Act provides for the issuing of more than one certificate of real right of extension and more than one certificate of real right of exclusive use areas at the opening of a sectional title register. The amendment of sections 25(10)(d), 25(10)(dA)(ii) and (iii), 25(11)(c), 27(1)(d)(i), 27(1)(e), 27(1B), 27(4)(c)(i) and 27(4)(d), as contained in clause 8(c), (d) and (e) or clause 9(a), (b), (c), (d) and (e), aim to rectify the position.
Clause 9
The Act provides for the issuing of more than one certificate of real right of extension and more than one certificate of real right of exclusive use areas at the opening of a sectional title register. The amendment of section 27 as referred to in paragraph 2.8.3, aims to rectify the position.
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