By Zerlinda van der Merwe
There is a common misconception amongst owners in sectional title schemes that they have the right to do anything to their exclusive use areas (“EUA’s”), without the consent of the trustees or members of the body corporate. It is important to remember that exclusive use areas, whether registered or rule-based, remains common property in its nature. Therefore, before undertaking any improvements to your exclusive use area (“EUA”), there is an application and approval process to be followed.
There is a substantial difference between an improvement to an EUA, and an extension of a section, and this distinction is important to keep in mind when making and approving an application for improvements to an EUA. In terms of Prescribed Management Rule (“PMR”) 30 of Annexure 1 of the Regulations to the Sectional Titles Schemes Management Act 8 of 2011 (“the STSMA”), the body corporate (trustees) must take all reasonable steps to ensure that a member does not construct or place any structure or building improvement on an exclusive use area, which in practice constitutes a section or an extension of the boundaries or floor area of a section.
If the proposed improvement will in fact extend the floor area of your section, it constitutes an extension of a section, requiring a special resolution of the members. However, furthermore the EUA will need to be cancelled, as it will no longer be an EUA, but rather part of the section.
Section 13(1)(e) and PMR 30(a) obliges an owner to not use their EUA in manner, or for a purpose, which may cause a nuisance to any other owner or occupier. This is an important consideration before undertaking alterations and improvements to an EUA, and in deciding the materials to be used, and the extent of the work to be undertaken.
In light of the above, in terms of PMR 30(d), an owner must not make alterations to their section which may interfere with the use and enjoyment of other sections, the common property or exclusive use areas.
In this regard, PMR 30(e) further provides that an owner must not do anything to their section which has a material negative effect on the value or utility of any other section or exclusive use area.
Section 13(1)(g) and PMR 30(f) provides that an EUA cannot be used for any purpose other than its intended use. Therefore, you cannot improve your EUA to the point that it becomes something else or is used for a different purpose other than what is shown on the sectional plan, building plans, rules, town-planning by-laws and its physical construction, layout and amenities.
In order to proceed with an improvement to your EUA, an ordinary resolution of the members of the body corporate is required. Under the Sectional Titles Act 95 of 1986 (repealed in part by the STSMA on 7 October 2016) used to only require a trustee resolution for such an application.
In granting their consent by the required ordinary resolution, the members may prescribe any reasonable condition in regard to the use and appearance of the structure or building improvement, and may withdraw their consent if the applicant member breaches any condition so agreed upon.
If you have any queries relating to this article and topic, feel free to contact the writer, Zerlinda van der Merwe, via email at firstname.lastname@example.org or telephonically on 021 686 3950, for a non-obligation quotation for a consultation.