Important amendments relating to the Sectional Titles Amendment Act
The new Sectional Titles Amendment Act No. 13 of 2022 ("the Act") incorporating regulations that govern property has been signed into law by our President and was published in the Government Gazette on 5 January 2023. The main aim of the Act according to the preamble or long title thereto, is the following:
- To amend the Sectional Titles Act, No. 95 of 1986 ("the principal Act") by amending certain definitions;
- To provide for the developer to answer questions put to the developer by the agents of the lessees;
- To further provide for the amendment of sectional plans in respect of exclusive use areas;
- To further provide for the amendment and cancellation of a sectional plan upon an order of the Court;
- To provide for the noting of a title deed in respect of the lapsing of a reservation in terms of Section 25;
- To provide for a lease of part of the common property with the consent of the holders of registered real rights;
- To amend the provisions relating to the alienation of common property;
- To further provide for the cancellation of a mortgaged section and mortgaged exclusive use area;
- To also provide for a developer to submit a plan for subdivision or consolidation to the Surveyor-General for approval to subdivide, consolidate and to extend a section;
- To extend the registration of subdivision of a section, the consolidation of sections, and the extension of sections to a developer;
- To provide for the filing of replacement documentation in respect of lost or destroyed documentation;
- To amend the provisions relating to the extension of a scheme;
- To amend the provisions relating to participation quotas of sections;
- To regulate the membership of the Sectional Titles Regulations Board, and to provide for matters connected therewith.
To amend the Sectional Titles Act, No. 95 of 1986 ("the principal Act") by amending certain definitions:
The most significant amendment made to the definitions in the principal Act, is the expansion of the definition for "exclusive use area", which now reads as follows (the underlined part having been added to the previous definition):
"'exclusive use area' means a part or parts of the common property for the exclusive use by the owner or owners of one or more sections or by the occupant or occupants thereof recognised by law, as contemplated in this Act;''
Legal occupants who are not owners of Sectional Titles, the most obvious example of which are tenants, are now included in the definition with regards to exclusive use areas.
To provide for the developer to answer questions put to the developer by the agents of the lessees:
Section 4 of the principal Act states that a developer who wants to establish a sectional titles scheme, must first apply to the relevant local authority for approval of the scheme. The developer however must first convene a meeting of all lessees to be affected by the establishment of the scheme before such an application can be made. During this meeting, the developer must then provide the lessees with all the particulars of the scheme reasonably requested and answer all reasonable questions they may have.
The amendment now provides that lessees may be represented by their agents at these meetings. This further protects the rights of lessees, especially considering that these meetings could get very technical in nature.
To further provide for the amendment of sectional plans in respect of exclusive use areas:
Section 14 of the principal Act regulates amendments and cancellations of sectional plans. Subsection 1 thereof states that "The Surveyor-General may require a land surveyor or architect who has prepared a registered sectional plan to alter or amend, or the developer or the body corporate to cause to be altered or amended, any registered sectional plan found to be incorrect, or to substitute another sectional plan for the incorrect sectional plan". According to Subsection 3, if the Surveyor-General is of the opinion that any person could be prejudiced by an incorrect sectional plan, they can advise the registrar as to which sections are affected by any such defect in question, and thereafter no transfer of such section shall be registered until the defect in the sectional plan has been rectified.
The amendment of Section 14(3) now also includes exclusive use areas and not just sections, i.e., if the Surveyor-General is of the opinion that any exclusive use areas will be affected by an incorrect sectional plan, no cession of an exclusive use area shall be registered until the defect in the sectional plan has been rectified.
To also provide for a developer to submit a plan for subdivision or consolidation to the Surveyor-General for approval to subdivide, consolidate and to extend a section:
Section 21 of the principal Act states that If an owner of a section proposes to subdivide his or her section, or to consolidate two or more sections registered in his or her name, he or she shall cause the land surveyor or architect concerned to submit the draft sectional plan of subdivision or consolidation, as the case may be, to the Surveyor-General for approval. This must be done with the consent of the Body Corporate, which consent may not be unreasonably withheld.
The amendment now also includes for developers to submit their intention to subdivide or consolidate their sections to the Surveyor-General, before a body corporate has been established.
Before the promulgation of the Act, and when the Bill was approved by Cabinet in April 2020, it stated that the "proposed amendments provide clarity and protect the lessees in the properties under the sectional-arrangement buildings".
Body Corporates, owners and developers are urged to consult with legal practitioners well versed in property law before they decide to alienate or expand on their sectional title schemes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.