Owning a unit in a complex can in some instances include the right to certain additional areas within the complex, eg garages, carports, gardens, balconies or store rooms. These additional areas in most instances would form part of the common property, not the unit and this is where some further clarity would be required.
Lets begin at the definition of a “unit”. A unit consists of: (1) the section that is utilized for residential purposes; and (2) an undivided share in the common property. The “common property” includes everything other than the section which would include areas such as the road utilized to access the section within the scheme, any general gardens, clubhouse, gate house and any other general facilities in the scheme. This common property is owned by the body corporate. The “body corporate” is an association of persons consisting of all the unit owners, and is usually managed by either trustees (appointed by the body corporate by vote) and/or a managing agent (appointed by the body corporate or trustees via a management agreement). The unit therefore generally consists of two parts.
However, in some instances, as alluded to at the outset, certain exclusive use areas are included with the unit. Exclusive use areas are common property, therefore owned by the body corporate, that are either registered or allocated to specific unit owners for their use only. Exclusive use areas can be created in two ways, resulting in two types of exclusive use areas. Registered, and by all means the “true”, exclusive use areas are created notarially and result in an actual deed available confirming this right. The other “exclusive use area”, rather referred to as “sole use areas” more correctly, are rule-based in that they are created in the body corporate conduct rules. A section should be dedicated to such sole use in the conduct rules which would also include a table laying out which sole use area is allocated to which unit/unit owner.
A quick way of establishing whether an exclusive use area is registered or rule-based is to view the body corporate conduct rules and if no clarity is still available, to acquire a copy of the sectional plan where the exclusive use areas should be lineated if made provision for by the developer.
Just an interesting fact is that a unit owner who owns a registered exclusive use area can cede the exclusive use area, but the one requirement is that the buyer must be a unit owner to acquire same.
For any clarity or more information relating to the above, please contact Tuckers attorneys on 011 897 1900, 076 777 1920 or info@tuckers.co.za.
Article contributed by Hayley Appel of Tuckers attorneys.