Ondeurdagte wysigings aan wet op deeltitels berg onverwagte gevolge

Translated title of the contribution: Unintended consequences of a statutory amendment relating to sectional titles and exclusive rights to common property

Research output: Contribution to journalArticlepeer-review


With the amendments to sections 25 and 27 of the Sectional Titles Act 95 of 1986, the legislature intended to terminate malpractices relating to exclusive rights to common property within a sectional titles scheme. The exclusive rights under consideration in this contribution encompass the exclusive right reserved to the developer to develop, mostly as part of a phased development, the scheme on common property of the scheme and the exclusive use rights relating to a part of the common property. The underlying reason for legislative intervention was malpractices whereby the developer could exercise his reserved rights at whim without carrying any of the consequences of his deeds because he ceased to be an owner of a single unit within the scheme and as such was not liable for any of the costs commonly divided amongst the unit owners according to the applicable participation quota. The legislature thus enacted a provision from 2003 that any exclusive use rights reserved for any legal subject shall "revert" to the body corporate by operation of law the moment the holder of the rights no longer was a unit owner within the scheme. The same applies to the exclusive development rights reserved for the developer. As soon as the term for which the rights were originally reserved lapses the right also automatically reverts to the body corporate. The act provides that the vesting of the real rights in the body corporate takes effect by operation of law and thus no real agreement is necessary. The registrar of deeds is compelled to amend the records in the deeds office to reflect the changed legal position regarding these exclusive real rights. The act does not provide for any discretion in this regard. It is submitted that the effect of these statutory amendments is to deprive arbitrarily the developer or the erstwhile owner of the exclusive use right, of a real right as patrimonial asset without any compensation and simultaneously to enrich the body corporate with the vested right. Because this outcome may be described as unfair and unsound it is submitted that the legislature should intervene to provide for an outcome that is fair and equitable when the unequitable result follows on a mistake by the conveyancer who merely forgot about the exclusive use right when transporting the ownership in the unit to which it was attached to the new purchaser. The facts of the McKersie and Avenues cases point to the predicament that followed on the rigid application of the black letter law for all involved. The seller is no longer the owner of the exclusive use right and since the transfer of his ownership in the unit, not a member of the body corporate. The seller is thus in no position to compel the body corporate as the new beneficiary owner of the exclusive use right to part with the new acquisition as a donation to the new purchaser as his successor in title. The latter, although a member of the body corporate as (the new) owner can do nothing more than beg all members of the body corporate to unanimously agree to a cession of the valuable exclusive use right to him. There is, however, nothing to prevent any of the members of the body corporate to refuse permission to transfer the real right to him. Although the conveyancer may be guilty of professional negligence, even a handsome sum of delictual damages is not going to compensate for the loss of the scarce parking bay in a complex. It is argued that this legislative provision amounts to an arbitrary deprivation of ownership. As such it is unconstitutional and should be amended. It should allow for at least a period of six months to pass before the right to exclusive use finally vests in the body corporate. This period will allow for a rectification of the record.

Translated title of the contributionUnintended consequences of a statutory amendment relating to sectional titles and exclusive rights to common property
Original languageUndefined/Unknown
Pages (from-to)706-723
Number of pages18
JournalTydskrif vir die Suid-Afrikaanse Reg
Issue number4
Publication statusPublished - 2014

ASJC Scopus subject areas

  • Law


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