By Anton Kelly
Owners in sectional title schemes are entitled, with the consent of the body corporate by special resolution, to extend the floor areas or boundaries of their sections. Of course, this entitlement is not always physically possible. It’s usually only possible if the section is on the ground floor and there is space for the extension. Sometimes a top floor section can be extended upwards by adding a loft or additional storey.
These days many sectional title schemes comprise cluster or even free standing houses rather than flats in a block. There is therefore much more potential for section extensions in these kinds of schemes.
The common misconception about alienation of common property
When a section is extended horizontally, it takes up more of the scheme land, which is common property. In our commercially orientated society it seems logical to some people that, as this owner is taking up extra common property, he or she must buy it from the body corporate. And there is even a process in the Sectional Titles Schemes Management Act, 8 of 2011 (the STSMA) for selling common property. The process is referred to as alienation of common property and it requires a unanimous resolution of the body corporate to authorise. The commercially orientated owners say the extension of a section therefore requires a special resolution to authorise, but also requires a unanimous resolution to authorise the necessary alienation of the common property which is the misconception.
There is nothing in either the STSMA or the Sectional Titles Act, 95 of 1986 (the STA) that even remotely suggests there is alienation of common property involved in a section extension or that owners who extend their sections should buy the portion of common property involved in the extension or compensate the body corporate in any way.
What alienation of common property actually means
Section 17 of the STA provides for alienation of common property. The provision opens by referring to the STSMA regarding the authorisation for the alienation. A unanimous resolution of the body corporate is required, plus the written consent of any person holding the right to extend the scheme in terms of section 25 of the STA.
The Registrar must register the transfer of land, and then the land reverts to the land register.
A diagram of the portion of land transferred must be approved by the Surveyor General and annexed to the property title deed.
The Registrar must notify the Surveyor General and the local municipality of any reversion of land to the land register, and the Surveyor General must make an appropriate endorsement to the original sectional plan of the scheme.
From the provisions of section 17 of the STA we can see that alienation of common property means the total removal of that land from the scheme, which is obviously not the case when an owner builds an additional bedroom onto his exclusive use garden. Which, by the way, requires the cancellation of the EU rights as part of the process!
Assistance with extending a sectional title section
Extending your section can be a tricky business but if you have the correct information and understand the required processes, you can make your property more comfortable and increase the market value by doing so. If you have any difficulties with section extensions, please contact consulting@for a no obligation quotation for legal advice.