Legal nature of exclusive use rights
By Dr Carryn Melissa Durham
In terms of section 2(c) of the Sectional Titles Act 95 of 1986 (“the Act”), all the owners of sections in a scheme own all the common property in undivided shares. In terms of section 32(3)(b) of the Act, the participation quota allocated to a section in terms of the sectional plan, determines the size of the share in the common property allocated to that section. In principle, all owners can use and enjoy all parts of the common property at all times. They all have a duty not to do anything that would prevent their co-owners from exercising the same rights.
Exclusive use rights give the owner or occupier of a unit in a sectional title scheme the right to use and enjoy a specific part of the common property, to the exclusion of all other owners and occupiers. However, an owner who has exclusive use rights to an area does not acquire ownership of that area. In the Body Corporate of the Solidatus Scheme No. SS 23/90 v De Waal case, the court accepted that the rights to exclusive use areas were so closely akin to ownership as to be virtually indistinguishable. This is not a correct interpretation of the nature of exclusive use areas. An exclusive use area is more closely akin to servitudes.
Exclusive use areas result in a diminution of the general use and enjoyment that section owners have with regard to the common property. By assigning the exclusive use and enjoyment of specific portions of the common property to individual owners, the other owners are effectively denied the use and enjoyment of that part of the common property, and the total service capacity of the common areas is reduced.
Exclusive use rights can be created in two ways. The exact legal nature differs in each case.
Registered exclusive use rights
Rights of exclusive use created in terms of section 27 of the Act, are rights to urban immovable property. They are registered rights to real property, recorded at the Deeds Registry. A holder of such rights has absolute rights, that they can enforce against any other person, by instituting legal proceedings. In terms of section 27(6) of the Act, a right to the exclusive use of a part of common property, registered in favour of an owner of a section, shall for all purposes be deemed to be a right to immovable property over which a mortgage bond, lease contract or personal servitude of usufruct, usus or habitatio may be registered.
Rule-based exclusive use rights
Exclusive use rights can also be conferred by rules made under section 27A of the Act. These are not real rights in immovable property, over which a mortgage bond, lease contract or personal servitude of usufruct, usus or habitatio may be registered. These exclusive use rights are personal rights, and are only effective against the body corporate of the scheme, all other owners, and occupiers of units. This is because these people are the only ones bound by the rules. These types of rules normally oblige the body corporate to take all necessary steps in its power to ensure that the exclusive use areas are reserved for the sole and exclusive use of the relevant owners. The scheme rules should be consulted, to confirm whether an exclusive use rule applies to a particular unit in a scheme, and to find out what the rule states in relation to maintenance responsibilities. A copy of the scheme rules can be obtained from the local Deeds Registries Office.
If exclusive use rights are conferred by the management rules, they can only be amended by a unanimous resolution of the body corporate in terms of section 35(2)(a). If they are conferred by the conduct rules, they can be amended by a special resolution of the body corporate in terms of section 35(2)(b). Although the rules of every scheme are filed at the Deeds Registry, and an amendment is only effective once the Registrar of Deeds has been notified, the Registrar is not involved in the enforcement of the rules.
Paddocks is hosting a workshop on exclusive use areas on 12 October 2016. For more information regarding the workshop, click here to download the information pack. If you require legal advice in regard to exclusive use areas please do not hesitate to contact consulting@paddocks.co.za.
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