TVDM Consultants – Zerlinda van der Merwe (Co-Founder & Director)
In our consulting department, we are often assisting clients with issues and queries that they have in regard to THEIR garden, balcony, parking etc. But, the question we always ask, is “is it yours?” This may sound strange to an owner of an apartment or townhouse in a building or complex, where the garden is walled, or the balcony is not accessible except through their flat, or where the parking is marked with the number of their unit, and where they may be paying an additional amount on their levy account for this area every month.
In many instances, we’re afraid that the answer is “no”, “no, that area is not yours”. And, you can imagine the disbelief or confusion that the owner experiences, especially if they have “bought” this area, and paid good money for it.
An exclusive use area must be formalised correctly in order to be considered as “part” of what you own or are entitled to use. There are three (3) ways in which exclusive use areas are formed.
You can hold a registered right to an exclusive use area, and this will reflect as part of your title deed, as a notarial deed of cession, and it will be shown on the sectional plans of the scheme (not to be confused with building plans), and if you undertake an online deeds search, like many estate agents do, then it will reflect there as well. This is why it is so important to ask for and receive, look at and understand, certain documents before you make an offer and buy a unit, such as the sectional plans and rules of the body corporate.
In regard to the rules, the other two (2) types of exclusive use areas do not afford registered rights, and although they may be recorded in an offer to purchase or sales agreement, the exclusive use area itself cannot be sold and transferred as it is not part of the title deed, and is only linked to the section in question by means of the amended conduct or management rules of the body corporate, that have to properly create the exclusive use area in the wording of a rule, and be allocated to a particular section as part of a schedule of allocation, and be shown on a layout plan, exactly where and what it is. If this is not done correctly, there will be no exclusive use right.
If there is a valid exclusive use area registered, as first described, you can sell and transfer this right, but only with the section it is attached to, or to another owner of another section in your body corporate. If the exclusive use area has been created and allocated in the rules, it cannot be sold, but will be allocated, for so long as the rule is not amended, to a particular section which may be sold. Any attempt to allow another section to use and enjoy the exclusive use area would be reallocation that would require a special resolution of the members in the case of conduct rules, and a unanimous resolution of the members in the event of management rules.
In either instance, a contribution, in addition to a contribution levied monthly, will be due and payable to the body corporate to reimburse the body corporate for any expenses it has incurred on the areas in question, such as maintenance or insurance. This contribution must be billed by the body corporate, unless the body corporate’s rules provide that the owner, as holder of the exclusive use area, is directly responsible for these costs, and the body corporate incurs no expenses in relation to these areas.
Next time you think an area linked to your property is yours, do check if it really is!
