Consolidation, what does that mean? To bring together separate parts into a single or unified whole; to unite, to combine together into one thing. This sounds simple enough, and under the Sectional Titles Schemes Management Act 8 of 2011 (“the STSMA”), to consolidate 2 or more sections, it is very simple – too simple in fact, as it requires only a trustee resolution! And the STSMA doesn’t even tell the trustees what to consider, so let’s unpack this.
In terms of section 7(3) of the STSMA, the trustees are deemed to be the owners of the land. Land is defined under section 1 of the STSMA as being the land comprised in the scheme as shown on the sectional plan. With this in mind, it makes sense that the trustees alone may make a decision as to the consolidation, and subdivision of sections.
In terms of section 7(2) of the STSMA, the trustees are empowered to receive an application/s for consolidation of sections from an applicant owner/s, and may consent to such application/s, and may further not withhold their consent unreasonably.
So, from the above, it is clear that when an owner/s wants to consolidate their sections into 1, a new delineated and numbered section, a prior written application MUST be made to the trustees, who have the choice, in their discretion, unless directed or restricted, to consent to the same or not.
This is an important point to remember, the trustees must act in accordance with the STSMA and rules, but are subject to any directive given or restriction imposed by the members, which may include 1 or more relating to this topic, simply because it is a big decision for the trustees to make. At least in my mind it is.
If there is no such directive or restriction, but the trustees, by majority resolution, wish to present it to the members first, they may do so, either for an informal or formal directive, the choice rests with the trustees, provided that they act reasonably in doing so. For example, they do not delay the application, they present all the relevant facts to the members, they do not share their personal views to the members, and they don’t seek a higher level of consent that an ordinary resolution of the members, which is debatable when one argues whether an ordinary resolution is required for a directive or restriction, or not.
The trustees, and/or members, in their consideration, must take into account whether any other section/s will be affected, and what the extent of this will be, whether the proposed work is permissible in terms of the body corporate’s rules, and municipal laws, whether any common property will be used, such as a passage, foyer, lift etc.
If the rules are not sufficient, the trustees may wish to be guided by the members, noting that any such proposed rule amendment takes time, which should not prejudice the applicant owner/s.
If common property will be affected, the use and enjoyment of same must be formalised by means of an extension of a section, a lease agreement, a servitude, or an exclusive use area created and allocated in terms of the conduct or management rules, or registered. The formalisation and costs should be the responsibility of the applicant owner/s.
And then when the approval is obtained, if it is obtained, the provisions of the Sectional Titles Act 95 of 1986, as amended, must still be followed, namely sections 21 and 23.
So, it’s not such a simple matter it seems, and may require very careful, and assisted consideration, by the trustees, and may even require the input and/or approval of the members of the body corporate.