Exclusive Use Areas in Sectional Title Schemes

What is an Exclusive Use Area?

In a sectional title scheme, all owners share in the use and enjoyment of the common property. An exclusive use area is a specified part of the common property which is designated for the exclusive use by a specific owner. Examples of these could include gardens, yards, parking bays or storage facilities. This area is allocated through a certificate of real right, granting the owner private use, along with their title deed.

There are three ways of creating an exclusive use area:

  1. Developer AllocationThe developer can create exclusive use areas either simultaneously with the opening of the sectional title register or after the opening of the scheme but before the body corporate is established. The body corporate is established when the first unit in the scheme is registered, making the new owner and the developer the body corporate members.

    The exclusive use area must be delineated on a sectional plan and the purpose for which the area may be used must be indicated on the plan. Therefore, if exclusive use areas are delineated on a sectional plan, the developer is compelled to create those areas. In other words, where there are exclusive use areas depicted on a sectional plan together with its section, the developer is forced to register them as real rights of exclusive use areas. Once the body corporate comes into existence, the developer can no longer create these areas.

    If multiple exclusive use areas are shown on a sectional plan, they must all be created and registered at the deeds office.

  2. Body Corporate CreationWhere the developer has not designated exclusive use areas, the body corporate may create these. With the consent of all unit owners, the body corporate may request an architect or land-surveyor to prepare sectional plans outlining the proposed exclusive use areas. These plans can then be submitted to the deeds office for registration.
  3. By Way of Management or Conduct Rules

Under the Sectional Title Schemes Management Act, the developer or body corporate may make rules which confer rights of exclusive use and enjoyment of parts of the common property upon the owners. The layout plan must clearly indicate the locality of the distinctively numbered exclusive use parts. The purpose of these areas must also be indicated on the layout plan. No title deeds are issued in this instance, the rights are merely personal.

Encumbrances on Exclusive Use Areas

Just like any other property, exclusive use areas can be subject to encumbrances that restrict the owner’s rights.

Common encumbrances include:

  • Mortgage Bonds: A mortgage bond may be registered against a section and its associated exclusive use.
  • Servitudes: A servitude is a legal right granted to one person to use another person’s property. A servitude may be granted over an exclusive use area for a specific purpose. For example, a servitude might be granted to allow utility lines running through an exclusive use area, or a right of way to provide access to a shared facility.

As previously mentioned, exclusive use areas created through management or conduct rules are not registered as real rights, but rather as personal rights granted by the body corporate. Therefore, it is important to note that these areas cannot be encumbered.

It is essential for owners to be aware of any encumbrances on their exclusive use areas to understand their rights and obligations.

Transferring Exclusive Use Areas

Exclusive use areas are ceded to the new owner when the section to which it is attached is sold and transferred. Exclusive use areas are generally considered indivisible from the section to which they are attached. This means they cannot be sold separately.  The process is therefore intertwined with the transfer of the section itself.

The cession of the exclusive use area must be registered at the Deeds Office along with the transfer of the section.

What if the Developer Fails to Register Exclusive Use Areas?

A developer’s failure to register exclusive use areas, despite being shown on the sectional plan, can have significant consequences for owners. Without formal registration, the owners have no legal right to exclusive use of the designated areas. This means that the area remains part of the common property, accessible to all owners.

Such oversight can lead to disputes among owners and can complicate the process of securing the area for private use. To rectify the situation, the body corporate must intervene by applying for the issue of a certificate of real right and then ceding the exclusive use area to the current owner. The application must be accompanied by an affidavit explaining the omission.

If the current owner decides to sell the section, the exclusive use area must be ceded to them first before transferring to a new owner. This process can be time-consuming and potentially costly.

Conclusion

Exclusive use areas are a crucial aspect of sectional title schemes, providing owners with private spaces within the shared environment. Whether created by the developer, the body corporate, or through management or conduct rules, these areas must be carefully managed and correctly registered to ensure the rights of owners are protected. When handled properly, exclusive use areas add significant value to a property and enhance the overall living experience in sectional title communities. Proper understanding and compliance with the legal framework governing these areas are essential for both developers and owners to avoid complications and disputes down the line.

If you require any assistance or guidance, please contact us on 021 914 4020.

Written By: Kim Pillay | Associate

Conveyancing | Tyger Valley