Exclusive Use Rights in Terms of Sectional Title Legislation

• Jurisdiction: South Africa
• Author: Horn, J.G.
• Pages: 91-109
• Date: 01 June 2020
• Published date: 01 June 2020

91

EXCLUSIVE USE RIGHTS IN TERMS OF

SECTIONAL TITLE LEGISLATION

JG Horn*

B Proc LLB LLM MA (HES) LLD

Senior Lecturer, University of the Free State

GJ Pienaar

B Jur et COMM LLB LLD

Professor, North-West University (Potchefstroom)

1 Introduction

The ownership of a sectional title u nit in a sectional title scheme consist s

of the “individual ownersh ip of a section together with an undivide d bound

common ownership shar e in the common proper ty”.1 The sect ion is dened

as a three-dimensional cubic entity with reference to its walls, oor and

ceilings.2 Therefore, ever ything not included in a se ction forms part of the

common propert y. As a result, the owner of a section does not have ind ividual

ownership of, for instance, ga rages,3 parking bays, balconies,4 or private

gardens, unless t hese form part of a section owned or a se parate utility

section. The use of these area s, however, can be allocated for the use of a

specic owner in his capacit y as owner of the section by conferr ing exclusive

use rights of such an area to the owner of that specic section.5 These areas

still form par t of the common propert y but are reserved for the exclusive use

of a specic owner. These rights form t he focus of this discussion.

Exclusive use rights can be created in t hree ways. First, in terms of section

27(1) of the Sectional Titles Act 95 of 1986 (“Sectional Titles Act”), the

developer may reserve an exclusive use area by means of a certicate of real

right of exclusive use delineated as such on the sectional plan whe n he applies

for the opening of the sectional t itle register. Secondly, in terms of section

27(2) of the Sectional Titles Act, the body cor porate may, by unanimous

resolution, create an exclusive use area by applying for its delineat ion on the

sectional plan and the issuing of certicates of real rights of exclusive use,

which are t hereafter ceded to the owners of specic sections. Thirdly, either

* This art icle is derived from part of th e author’s LLD dissertation: JG Ho rn The Legal Effect of Rights

Specific t o Sectional Title P roperty in So uth Africa, with Re ference to Selec ted Aspects of Aus tralian and

Dutch Law LLD d issertation Nor th-West University (2018)

1 Section 2(b) and (c) of the Sect ional Titles Act

2 S ection 5

3 A no n-contiguous part of a bu ilding may also be included as p art of a section, for insta nce, a garage,

servant’s quar ters, or a store room sho uld it be indicated as such on t he sectional plan See s 5(6) of the

Sectional Title s Act as well as GJ Pienaa r Sectional Ti tles and other Fr agmented Pro perty Sche mes

(2010) 60

4 Howeve r, if such a stoep, balcony, porch at rium, or projection c an be included as par t of the section it is

appurte nant to the section See also s 5(5)(b) of the Sect ional Titles Act; Pienaa r Sectional Title s 60

5 T hese rights are co nferred in ter ms of s 27 of the Sectional Title s Act as limited rea l rights or in ter ms of

s 10(7) or (8) of the STSM Act as a person al right

(2020) 31 Stell LR 91

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the developer or the body corporat e may create and allocate rights of exclusive

use to specic owners in terms of the management or conduct rules of t he

sectional title scheme.6

The creation of exclusive use areas by means of management or c onduct

rules (‘the rules”) was in itially statutorily provided for by the Sectional Titles

Amendment Act 29 of 2003 (“Sectional Titles Amendme nt Act”) by adding

section 27A to the Sectional Titles Act. However, with the separation of

management and regist ration matters after t he commencement of the Sectional

Title Schemes Management Act 8 of 2011 (“STSM Act”) on 7 October 2016,

section 27A was repealed by item 12 of the Schedule to the STSM Act and

re-enacted i n sections 10(7) and (8) of the STSM Act.7 This changed the legal

basis for the creation of exclusive use rights in ter ms of the rules.

This art icle discusses the nature of, and cha nges to, exclusive use rights

brought about by the commencement of th ird-generation legislation on

sectional titles. The nat ure of exclusive use rights in terms of the Sect ional

Titles Act and the STSM Act is further more investigated. As the STSM Act

now forms the statutor y basis for the rules, the nat ure of the rules i n light

of the new legislation is also explored. Finally, this article investigates t he

distinction bet ween rule-based exclusive use rights a nd exclusive use rights

created in term s of sect ion 27(1) of the Sect ional Titles Act. The di fculty

that this disti nction leads to in practice is illustr ated by a critical discussion of

case law and the common-law pri nciples of property law. The disadvantages

experienced by the non-regist ration of these rights are h ighlighted. The

dissection of exclusive use rights in this a rticle aims to paint a clearer pict ure

of the exclusive use rights in terms of the Sect ional Titles Act and the STSM

Act.

2 Rule-based exclusive rights in terms of the Sectional Title

Schemes Management Act

2 1 The legislative basis of rule-based exclusive use rights

Rule-based exclusive rights are neither regist ered in the deeds regist ry as

real rights nor are they deli neated on the sectional plan.8 Provi sion for the

creation of exclusive use rights in terms of the r ules of a sectional title scheme

was therefore introduced a s a simpler and cheaper option to allocate exclusive

use areas. With the comme ncement of the STSM Act, rule-based exclusive

use rights are now create d in terms of section 10(7) and (8) of this Act and no

longer in terms of the now-repealed se ction 27A of the Sectional Titles Act.9

6 T he management and con duct rules are the i nstruments by wh ich the scheme is regul ated and managed

It furthe rmore provides for the a dministra tion, regulation , and management of the u se and enjoyment of

sections and c ommon property See s 10(1) and (2) of the STSM Act Although th e STSM Act contains

model managem ent and conduct r ules, these may b e amended, re pealed or added t o by the developer when

he opens the se ctional title reg ister or by the bod y corporate d uring the ma nagement of the sche me; s 10(5)

of the STSM Act

7 CG v an der Merwe Secti onal Titles, Share Blo cks and Time-S haring (201 2) 11-53

8 11-53 In terms of s 10(8) of the STSM Act the rule s creating t he right should in clude a lay-out plan

indicatin g the locality of the exclu sive use area

9 Van de r Merwe Sectional Ti tles 11-53

92 STELL LR 2020 1

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