Most people who own property in sectional title schemes are familiar with the term “exclusive use area” (EUA). However, a fair amount of confusion seems to exist regarding the exact nature of EUA’S. This is not surprising as there are different ways in which EUA’S have, and can be created. And although, from a practical point of view, the rights and obligations of persons enjoying exclusive use of an area are similar insofar as the use and maintenance of the EUA is concerned, there are some key differences regarding the way in which EUA’S have and can be created and the “legal nature” thereof once created. This article is restricted (largely) to the different ways in which EUA’s have and can be created.
An EUA is defined in the Sectional Titles Act as : “part or parts of the common property for the exclusive use by the owner or owners of one or more sections”. It is clear from the definition that EUA’s form part of the common property and are accordingly not owned by any one person or persons. So, although from a practical point of view, persons who have exclusive use of an area enjoy rights that are similar to ownership rights in respect of that area, they are not legally the owners thereof.
Under the “Old” sectional title legislation, the Sectional Titles Act No 66 of 1971 (the 1971 Act), EUA’S were created by rights of exclusive use being allocated to an owner or owners by written deed of cession being issued by the developer to such owners or, alternatively, exclusive use being allocated to owners in terms of a “use and occupation” agreement. If the correct procedures were followed when allocating such rights of exclusive use, then the rights are enforceable and EUA’s created in terms of the abovementioned procedure will still be applicable in some of the older schemes.
The second way of creating EUA’s was brought into being by the Sectional Titles Act of 1986 (the 1986 Act). In terms of this Act, the developer can delineate areas of the common property as EUA’s on the sectional plan, and these areas can then be registered as such in the Deeds Office when the sectional title register is opened.
For example, if a scheme comprises 50 units and it is the developer’s intention that each owner should enjoy the exclusive use of one parking bay, then 50 parking bays will be delineated on the sectional plan as EUA’s. The parking bays are numbered and one parking bay is then allocated to each unit. The same would apply in respect of gardens, carports and any other EUA’s.
When the unit is transferred, the EUA is also transferred by way of a Notarial Deed of Cession. The purchaser accordingly receives a document that is registered in the Deeds Office that is proof of the fact that he enjoys the exclusive use of a particular area. This area is depicted on the sectional plan that is registered in the Deeds Office. This type of EUA is the most preferable as it is formal and creates the most certainty.
In addition, under the 1986 Act, the Body Corporate can, by way of a unanimous resolution, create EUA’s. The 1986 Act prescribes all the procedures that must be followed to create and register EUA’s created by the Body Corporate.
The third option for creating EUA’s is regulated by Section 10(7) and (8) of the Sectional Title Schemes Management Act (STSMA). In terms of the aforementioned Section, the developer, or the Body Corporate, may create EUA’s via the Management Rules or the Conduct Rules. If they are created in terms of the Management Rules then a unanimous resolution from the owners is required. If they are created in terms of the Conduct Rules then a special resolution from the owners is required. When EUA’s are created in terms of the Rules as aforementioned, the Rules must: (a) include a layout plan to scale on which is clearly indicated the locality of the distinctly numbered EUA’s and the purposes for which the EUA’s may be used; and (b) further include a schedule indicating to which owner the EUA is allocated.
As will be apparent from the above, the issue of EUA’s can sometimes be somewhat confusing. Trustees and owners in sectional title schemes, when dealing with EUA’s, are advised to seek expert legal advice when dealing with EUA’s if any uncertainty exists regarding the EUA issue being dealt with.
Furthermore, property practitioners who have been mandated to sell a sectional title property which includes an EUA should determine the exact nature of the EUA to ensure that it is correctly described in the deed of sale and that the purchaser will be obtaining a legally enforceable right of exclusive use.
(Disclaimer: This article is for information purposes only and do not constitute legal or other professional advice)
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