Section 14 of the Sectional Titles, Act 95 of 1986, (the "Act") affords the Surveyor General inter alia with the right to substitute any registered sectional plan, found to be incorrect, for another sectional plan (note on the underlined words).
In practice it often occurs that the developer sells units and exclusive use areas from the building plans, and subsequently the sectional title register is opened with a sectional plan on which the sectional title units and exclusive use areas are not numbered in accordance with the building plans from which units and exclusive use areas were sold. Should the sections and exclusive use areas be transferred to the purchasers, as per the building plans, and it is subsequently discovered that the de facto and de jure positions differ, in that the "owners" are not registered owners of the correct sections as depicted on the sectional plans, the question begging an answer is whether this intolerable situation can be rectified by requesting the Surveyor General to merely substitute the "incorrect sectional plan" with a sectional plan bringing the de facto and de jure positions in line with one another (see section 14(1) of the Act).
The matter was referred to the Sectional Title Regulation Board, and the Board was unanimous that, in view of the fact that the sectional plan registered in the deeds registry is not "found to be incorrect", the provisions of section 14 of the Act cannot be invoked to rectify the errors in registration. From an examination point of view, it will be evident that the plans are not "incorrect" where the substituted plans are merely rectifying the numbers of the sections, and nothing else.
The only manner to bring the de facto and de jure positions in line with one another is to bring an application to court requesting the substitution of the plan. This is, however, a very costly and lengthy process. As an alternative rectification transfers/cession can be registered whereby the "incorrect owner" transfers/cedes the units/exclusive use areas to the "rightful owners". Should there be bonds registered over the units and exclusive use areas, such bonds must be disposed of. This can be done by either cancelling the bonds and re-registering such bonds, or by applying the provisions of section 57 of the Deeds Registries Act 47 of 1937 for the substitution of the bonds. However, the provisions of section 57 cannot be applied in respect of exclusive use areas, and thus such bonds registered over the exclusive use areas will have to be cancelled and re-registered.
To prevent the malpractice from perpetuating itself, the Sectional Title Regulation Board has requested the Chief Surveyor General to issue a communiqué that no such substituted plans be approved, and the Chief Registrar of Deeds will in turn also issue a circular in this regard. However, the matter was referred to the Conference of Registrars and the resolution was that rectification transfers must be registered to amend the situation, or a court order must be obtained to authorize the substitution of plans, in terms of section 14 of Act No. 95 of 1986 (see RCR 58 of 2011).
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.