Most people who own property in sectional title schemes are familiar with the term “exclusive use area”. However, a fair amount of confusion seems to exist regarding the exact nature of exclusive use areas. This is not surprising as there are three different types of exclusive use areas.
An exclusive use area 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 exclusive use areas 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.
The first type of exclusive use area is one that is created under the 1971 Sectional Titles Act. These areas were created by the developer by delineating the areas that owners would be allowed to use for themselves, for example, gardens, parking bays, carports and the like. It was rather a loose and informal arrangement and the situation was addressed when the Sectional Titles Act of 1986 was promulgated.
The second type of exclusive use area was brought into being by the abovementioned act (the 1986 Act). In terms of this Act, the developer can delineate areas of the common property as exclusive use areas 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 exclusive use areas. 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 exclusive use areas.
When the unit is transferred, the exclusive use area 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 exclusive use area is the most preferable as it is formal and creates the most certainty.
The third type of exclusive use area is one that is created through the rules of the Body Corporate. Take the following example : there are 50 parking bays in a scheme, but the bays have not been delineated on a sectional plan, and there has been no formal allocation of exclusive use areas in respect of the bays (this situation most frequently occurs in the older sectional title schemes). The body corporate wishes to allocate one specific parking bay for each owner for his or her specific use. The basic procedure to be followed under such circumstances is as follows : a sketch plan delineating each parking bay must be drawn up. A meeting of the body corporate must be held and the proposal put to the members that specific parking bays are allocated for the exclusive use of each owner. This proposal must be passed by a resolution of the members. Application should then be made to the Deeds Office to lodge the rules in terms of which the exclusive use areas have been allocated.
An owner who enjoys the exclusive use of an area is obliged to keep and maintain that area in a neat and tidy condition and, in terms of a court decision, is also responsible for the maintenance and repair thereof.
As will be apparent from the above, the issue of exclusive use areas can be rather confusing. When taking mandates to sell sectional title properties, estate agents should investigate the issue of any exclusive use areas that are being sold with the unit, to ensure that the exclusive use area is described correctly in the Deed of Sale.