A reader in a fairly small sectional title scheme is interested in obtaining an area of the property for his exclusive use, but wants to do so within the law so there are no comebacks.
He writes that the scheme is administered by the owners in a somewhat casual manner and has suffered from mismanagement over the years.
It seems formal meetings are not held regularly, minutes have not always been kept and decisions appear to have been made on an ad hoc basis.
See the reader’s question here.
One of the issues that have arisen is that various areas have been annexed by adjoining owners as being for their exclusive use, primarily for entertainment.
The reader is concerned after a request for records of these areas being assigned as such was met with some resistance and fuss.
Prior to the implementation of the Sectional Titles Schemes Management Act, sections 27 and 27A of the Sectional Titles Act provided the primary methods used to create exclusive use areas.
Section 27 provided for a comprehensive but potentially costly process.
Under this section a plan would be drawn by an architect or land surveyor and, subject to the unanimous consent of the body corporate, a notarial deed would be registered, granting a real right to the owner of the section.
That right can be transferred to the new owner when, for example, the section is sold.
Section 27A introduced a rule-based type of exclusive use where the body corporate could confer the use of an area, as identified on a layout plan, by way of a rule.
Clearly, the second method is less complicated and ultimately less costly. In this instance, the right of use is personal, not transferable and not registered.
This method was introduced by the Sectional Titles Amendment Act of 1997.
It is quite possible that exclusive use areas in the scheme were granted in a casual manner prior to this date, and even subsequent to it, without proper compliance with the provisions of the section.
The Sectional Titles Management Act repealed section 27A but introduced a similar rule-based form of exclusive use.
The rule must take the form of either a management or conduct rule and, as such, must comply with the requirements set out in certain sections of the act.
It must provide for the regulation, management, administration, use and enjoyment of sections and common property.
Exclusive use under the Sectional Titles Management Act is catered for in section 10(7) and (8).
They state that a body corporate may make management or conduct rules that confer rights of exclusive use and enjoyment of parts of the common property upon members of the body corporate.
Such rules must include a layout plan to scale on which the locality of the exclusive use areas is clearly indicated, and an explanation of the purposes for which they may be used.
In addition, they must include a schedule indicating to which owner each such part is allocated.
The reader should consider the longevity of the registration of his intended exclusive use area as opposed to the simplicity of a rule-based allocation.
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