Building on an Exclusive Use Area: Extension vs Improvement By Carryn Melissa Durham

What constitutes an extension of a section when an owner builds on his or her exclusive use area and what is simply an improvement to the exclusive use area?

Section 24(3) of the Sectional Titles Act 95 of 1986 (“the Act”) deals with extensions of sections:

“If an owner of a section proposes to extend the boundaries or floor area of his or her section, he or she shall with the approval of the body corporate, authorized by a special resolution of its members, cause the land surveyor or architect concerned to submit a draft sectional plan of the extension to the Surveyor-General for approval”.

Prescribed Management Rule 68(1)(vi) deals with improvements to exclusive use areas. It states that an owner:

“…shall not construct or place any structure or building improvement on his or her exclusive use area, without the prior written consent of the trustees, which shall not be unreasonably withheld and that the provisions of section 24 and section 25 or other relevant provisions of the Act or the rules, will not be contravened”.

But whether an alteration to an exclusive use area ‘extends the boundaries or floor area’ of a section, and is therefore an extension of it, or simply amounts to an improvement is not always clear.

When the exclusive use area is enclosed by a permanent structure and the space becomes water-tight, the nature and utility of the area is changed. The owner can then use the exclusive use area for a different purpose from which it was originally intended to be used. In such a case the boundaries and floor area of the section would have been extended.

However, when an outside exclusive use area such as a patio, veranda or balcony is covered or semi-enclosed by a non-permanent structure such as awning made of cloth, it does not become water tight and its utility may not have been changed. In this case, the alteration would likely constitute an improvement to the exclusive use area requiring prior written trustee consent, rather than an extension of the section, which requires a special resolution of the body corporate.

Using Caroll’s scenario where the owner wants to build a patio or wooden deck on their exclusive use area, and following the logic outlined above, the alteration would not constitute an extension of the owner’s section as the boundaries or floor area have arguably not been extended. A patio or wooden deck is not a watertight enclosure and the area’s utility has not been changed.

In Caroll’s case the patio or deck would be considered a structure or building improvement on the owner’s exclusive use area and therefore only the prior written consent of the trustees would need to be obtained to approve it.

Another common improvement to an exclusive use area is when an owner wants to create shade by placing a retractable awning against the wall abutting his section.

What about the situation where an owner wants to waterproof the patio on his exclusive use area by adding walls and a roof made of metal or wooden shutters? The patio would become a permanently enclosed area and could then be considered an extension of the section. This is because the floor area of livable space would be increased. The patio would then become something more than a garden area. It would be a space that could be utilized as an inside braai room or extended lounge area.

If a body corporate wants to make some of the grey areas clear, it could make a rule which specifies exactly what alterations would constitute building improvements of exclusive use areas and what alterations to exclusive use areas would constitute extensions of the sections.

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