SECTIONAL TITLE: WHEN YOUR NEIGHBOR OWNS YOUR GARDEN – BY STEPHAN SPAMER
Prospective buyers of sectional title property seldom examine the sectional title plan of the complex in which they are buying. The result may be that the private garden or exclusive parking garage which was sold to you at an “unbeaten price” does not belong exclusively to you but may be used by any other owner in the complex at any given time, leaving you without any remedy.
According to the Sectional Titles Act owners in a sectional title scheme have exclusive ownership of the unit which they occupy. The remainder of the property, known as the common property, is owned jointly by all the other owners in the complex. These areas are typically areas such as the pool, balconies, gardens and parking areas.
An exclusive use area (“EUA”) is an area of the common property reserved for the exclusive use of a particular owner. Although the EUA remains part of the common property, it is not available for the use by the other owners in the complex. EUAs are usually demarcated when the property is developed and are shown on the sectional title plan of every scheme. As an owner of a unit in a sectional title scheme you have the right to demand an inspection of these plans to establish whether any EUAs were allocated to the unit which you own. Unless you acquired a registered EUA, you as the owner will be left with no more than the four walls that you paid for and your neighbor might in law be entitled to have a barbeque on your front lawn every Saturday. In addition, you will not be allowed to make any changes or alterations to these areas without the consent of the every owner in the complex.
How to secure a right to a EUAWhere the developer failed to allocate an EUA to an owner, all the owners in the complex can by unanimous resolution agree to amend the complex’ sectional title plan, thereby creating registered EUAs. Registered EUAs must be surveyed and shown on the sectional title plan and registered with the Deeds Office by means of a notarial deed. Once registered, an owner obtains a registered right to real property recorded in the Deeds Registry which can be enforced against any person.
A cheaper alternative is for owners to secure their rights to EUAs by amending the complex’ management or conduct rules and registering the amended rules at the Deeds Office. In these circumstances, although the right is not capable of registration against the title deed, an owner obtains a personal right that is enforceable against all the other owners in the complex.
Maintenance of EUAsAlthough called an exclusive use area it remains, by definition, common property and the Body Corporate of the sectional title scheme remains liable to maintain all EUAs. This means, for example, that the cutting of your grass and the cleaning of your parking bay is the responsibility of the Body Corporate. However, section 37(1)(b) of the Sectional Titles Act places an obligation on the Body Corporate to pay for the maintenance of the EUAs and recover from an owner entitled to an EUA all the expenses incurred and related to that area. In other words, every owner who is entitled to exclusive use must bear the costs directly attributable to the area to which he/she has exclusive use. The duty to maintain EUAs and to recover the costs from the owners is a legal obligation and neither the Body Corporate nor the trustees of a complex can ignore this.
Although the trustees can agree that an owner should maintain his EUA at the owner’s cost, the Body Corporate has the right to interfere and to maintain the area at any time if the owner fails to maintain it properly. Any costs incurred by the Body Corporate can be recovered from the owner.
Determining the costsIt may often be difficult for the Body Corporate to determine the contribution payable by an owner in respect of the maintenance of his EUA. A relatively easy solution is to determine the actual expense in respect of the EUA at the beginning of each financial year according to the proposed budget, and then allocate these expenses in proportion to the ground areas of the EUA. This can be achieved, for example, by measuring individual gardens and calculating the costs attributable to each garden. Where a private garden is 25m² and the total size of all gardens is 5000m² with the monthly garden expense R7000-00, the cost to be charged to the owner is R35-00 per month (25/5000*7000). Ad hoc expenses should be debited against owner accounts as and when they occur.