Change of use
By Carryn Melissa Durham
It often occurs in sectional title schemes, that owners use parts of their sections or exclusive use areas for a purpose other than it was originally intended to be used.
An example is, when an owner converts his garage into a bedroom, lounge or office space. The reason why this would be problematic is that a garage is intended to be used as a space for parking a motor vehicle. If this space is then used for another purpose, it would place more pressure on the availability of parking bays in the scheme, as the owner would then need to park outside the garage.
It also often occurs that a garage is used as an office or workshop. It is important to distinguish between someone quietly working from home, by sitting in front of their computer; working entirely online and using the phone, which doesn’t involve any nuisance; and running a business that disrupts the residential harmony of the scheme. In my opinion, the former should be more readily consented to, whilst the latter should not.
I have also come across a situation where the owner wanted to enclose their balcony and convert it into a bathroom! My main concern, was that this alteration would impair the stability of the building as the balcony would not of been able to facilitate the weight of a bathtub full of water.
The provisions that deal with using a section or exclusive use area for a purpose other than shown on the sectional plan are dealt with in section 44(1)(g) and section 44(2)(a) of the Sectional Titles Act 95 of 1986 (“the Act”) and Prescribed Management Rule 68(1)(v). Section 44(1)(g) states that:
“An owner shall when the purpose for which a section or an exclusive use area is intended to be used is shown expressly or by implication on or by a registered sectional plan, not use nor permit such section or exclusive use area to be used for any other purpose: Provided that with the written consent of all owners such section or exclusive use area may be used for another purpose.”
Section 44(2)(a) of the Act adds to section 44(1)(g) and states that:
“Any owner who is of the opinion that any refusal of consent of another owner in terms of the proviso to subsection (1)(g) is unfairly prejudicial, unjust or inequitable to him, may within six weeks after the date of such a refusal make an application in terms of this subsection to the Court.”
Prescribed Management Rule 68(1)(v) takes this further and states that:
“In addition to his obligations in terms of section 44 of the Act, an owner shall, when the purpose for which a section and exclusive use area is intended to be used,
a. is shown expressly or by implication on a registered sectional plan;
b. is shown expressly or by implication on the original approved building plan thereof;
c. can be inferred from the provisions of the rules; or
d. is obvious from its construction, layout and available amenities, not use, nor permit such section or exclusive use area to be used, for any other purpose: Provided that with the written consent of all owners such section or exclusive use area may be used for another purpose.”
In the unreported case of Bonthuys and Others v Scheepers CA 303/2006 [2007] ZAECHEC (17 Sept 2007), the High Court of the Eastern Cape reversed the decision of the Magistrate’s Court, granting consent to the owner of a unit in a residential sectional title scheme to run her hairdressing salon. The court allowed the appeal because the lady started the business without obtaining the written consent of the owners in terms of section 44(1)(g), and because the refusal of 13 of the owners to grant their consent was not unfairly prejudicial to the applicant. The court followed the court in Cujè-Jakoby & Another v Kaschub & Another 2007 3 SA 345 (C) in interpreting the word “unfairly” where the court found that the words “unfairly prejudicial, unjust or inequitable” denoted conduct which departed from the accepted standards of fair play and that the word “unfairly” should be equated with the word “unreasonably.” The Court found that the prejudice suffered by the other owners, far outweighs the prejudice that may be suffered by the applicant. It was decided that:
- The hairdressing salon would affect the peace and tranquility associated with a residential scheme.
- The fact that the applicant created a separate entrance for her clients would compromise the security of the other owners.
- The evidence did not indicate any value added to the other owners, but rather suggested an adverse effect on the owners.
- It was stressed that personal circumstances of the applicant namely that she lost her job because the salon she worked for closed down and that she struggles to support a four year old child, did not justify a departure from the established scheme.
Therefore, a section or exclusive use area cannot be used for another purpose without the written consent of all the owners in terms of section 44(1)(g) of the Act and PMR 68(1)(v).
Have you experienced similar situations in your scheme? Why not share your situation in the comment section below.
Image source: houzz.com
Thinking Inside the Box 
Thx this is a good one
Les
Dear Frank
Section 44(1)(e) of the Sectional Titles Act prohibits an owner from using his section in a manner that causes a nuisance to any other occupier in the scheme. This would include the excessive noise from the sawing and hammering.
Furthermore, it should be considered whether the owner is breaching any municipal by-laws or zoning restrictions contrary to PMR 68(1)(ii). I agree with you that manufacturing would fall under industrial zoning.
Thanks Carryn
We have checked with the Home Owners Association (HOA) and they say the area was not zoned for manufacturing.
We will now contact the owner to rectify the situation.
Regards – Frank
Thank you Carryn, This article has come at just the right time.
We have a situation whereby a tenant has leased a unit (shop) in our building and is using the back kitchen area to manufacture cupboards. Initially we were not aware of this as the front section appears to be a reception/office area. The name of the company is on the front window and in smaller print it states that it is a Design company covering all sorts of designs including cupboards.
The area we are situated in falls under a HOA, and the buildings in the area were sold and promoted as “Mixed Use” Residential, Office and Commercial space. We believe the Commercial space is for retail shops not for manufacturing.
We gave already had a run in with the tenant as he tends to leave his cupboard boards outside his back door on common property. Aside from that the noise levels of hammering and sawing are starting to increase.
Do you agree that Commercial units in a Sectional Titles Building fall under the category of retail space and not manufacturing? Manufacturing we would think would fall under Industrial.
Regards – Frank