You have recently bought into a Sectional Title Scheme and have plans to improve your Unit by enclosing a patio over which you have the Exclusive Use. You employ the services of a draughtsman and present plans to the Managing Agents for approval by the trustees of the Body Corporate.
Are the trustees empowered to consent to such enclosure?
A Sectional Title is a form of communal living that is highly regulated and needs careful consideration before an investment is made to purchase in a Scheme and before any cost is incurred to improve a property.
Simply put, when you purchase a property in a sectional title complex, you are buying a Unit (which is measured by taking the median line between the inner walls and the outer walls and the floor and roof areas) and an undivided share in the Common Property such as gardens, passageways, lifts, staircases and parking bays – which is effectively co-owned by everyone.
Together this constitutes a ‘Unit’ as defined in the Sectional Titles Act.
If an area does not form part of a section, by default it forms part of the Common Property, and no decision can be taken in respect of such Common Property unless agreed to by the members in the Scheme. Either by means of a trustee resolution or a resolution of the members of the Scheme.
An Exclusive Use Area can be allocated to you, which means you have the use over part of the Common Property, to the exclusion of all other homeowners in the complex. This usually applies to parking bays, a garden area or even a patio. This does not, however, make you the owner of such area – you merely have the right to use and the obligation to maintain such area.
Exclusive Use areas are furthermore allocated for a particular purpose – that is, you are restricted to use the Exclusive Use area assigned to you for such purpose, and no other purpose.
For example, if you have been allocated a parking bay, you cannot change the parking bay to a braai area for your exclusive use – it can only be used for its intended purpose.
Should you wish to enclose a patio in respect of which you have the Exclusive Use (and which forms part of the Common Property), you are effectively extending the footprint (floor area) of your Unit.
This will require a unanimous resolution of the members of the Scheme, as it is effectively a disposal of a portion of Common Property. Where such a complex is situated within an estate, the further approval of the Home Owners Association would also have to be obtained.
Should an extension cause the sectional title plan of the entire complex to deviate by more than 10% of the participation quota (total floor area of all units), the consent of every mortgagee (bondholder) must be obtained as well.
An improvement to an Exclusive Use area, for example by the erection of a jungle gym, or by putting up a retractable awning over a patio will only require trustee approval.
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