It is not unusual for sectional title schemes to include parts of the common property that are exclusively used, improved and/or enclosed by owners, but which are not formal exclusive use areas. Typical examples are gardens, yards and carports.
Because these areas are not legally set up as exclusive use areas, either in terms of the scheme’s registered sectional plan or under its rules, these owners do not pay additional contributions to cover the costs of their upkeep. The result is that all owners subsidise the body corporate’s costs or repair and maintenance in areas only one owner can use.
The answer to this problem has been provided in terms of section 39 (6) (g) of the Community Schemes Ombud Service Act which allows an adjudicator to give “an order obliging an owner or occupier to accept obligations in respect of a defined part of a common area”.
In practice, this means that where sectional owners effectively have exclusive use but will not agree to their rights and obligations being formalised, the trustees or any owner can approach the CSOS to oblige them to accept these responsibilities.
The CSOS Act also provides a solution where the body corporate does not want to give the owners exclusive use, but want the owner to remove unauthorised improvements, such as a fence or other structure. Under section 39 (2) (d) an adjudicator can give “an order for the removal of all articles placed on or attached illegally to parts of a common area or a private area”