By Raymond Meyer

In my experience as a conveyancer, since the early days of sectional titles schemes, and also as an owner, parking and more particularly, the use and abuse of demarcated parking areas is one of the biggest sources of dissatisfaction in sectional title schemes and, for that matter, other communal housing schemes.

Since the inception of sectional title ownership by the promulgation of the original Sectional Titles Act 66 of 1971 (the 1971 Act) in 1973 there have been three ‘generations’ of sectional title legislation governing such schemes; namely that Act, the replacement Sectional Titles Act 95 of 1986 (STA), which took effect in 1988 and the Sectional Titles Schemes Management Act 8 of 2011 (STSMA) promulgated in October 2016, which took over the governance functions of schemes from the STA in 2016, leaving the former as an enabling Act.

In its infancy under the original Act, no provision was made for the allocation of an exclusive use area and nor could an open area such as a parking bay or a semi-enclosed carport form part of a section.

This difficulty was overcome by the compilation by developers of rules (almost invariably the so-called South African Property Owners Association (SAPOA) and the subsequent Association of Building Societies of South Africa rules) to replace the more cursory statutory rules. The substituted rules made provision for exclusive use areas to be allocated to individual owners by reference to an attached plan and an accompanying allocation schedule.

The rules protected an owner’s right to use an allocated exclusive use area in that they usually formed part of the sch 1 Rules, now termed Management Rules, which could not be changed without a unanimous resolution of the body corporate and further required the consent of an owner whose proprietary rights were adversely affected by the resolution.

The rules usually made provision for the owner having the use of the area to pay an additional levy. These rules, if enforced, have worked adequately in practice and still form part of the un-amended rules of many older schemes.

The STA formalised the allocation of an exclusive use area by providing in s 27 for the demarcation of exclusive use areas on the sectional plans and for the conveyance of such rights to owners by means of a notarial cession.

The rights to an exclusive use area shown on the sectional plans, therefore, take the form of servitude real rights, which are capable of being mortgaged and which can be ceded to a successor or in some circumstances to other owners (but not to a non-owner). It is still advisable to have rules governing the usage of these areas and specific provision was made in statutory Management Rule 31 of the rules prescribed under the STA for additional levies to be paid for the use of an exclusive use area to cover defined expenses.

The difficulty experienced was that to survey off and demarcate the exclusive use area, as well as to register such an area at the deeds office by way of a certificate of real right involved additional expense and developers regrettably took shortcuts by omitting to demarcate them on the plans.

This difficulty was overcome by amending legislation in 1997, which reintroduced the less formal allocation of exclusive use areas in the rules in s 27A of the STA, now repealed, largely the same as was the case in the substituted rules under the 1971 Act.

As mentioned, the STSMA took over the governance provisions of the STA, including the provision for rules based exclusive use areas under ss 10(7) and (8).

Thus two forms of allocation of an exclusive use area exist, namely –

• sectional plan based; and
• rules based areas in terms of ss 27 of the STA and 10 of the STSMA respectively.

As can be deduced, the latter form does not convey real rights and is not capable of being ceded or mortgaged.

Both types involve the payment of additional levies to cover expenses pertaining to them and are protected from appropriation by third parties.

A third option adopted by some schemes and recommended by experienced sectional title administrators is to retain parking spaces as part of the unallocated common property and for the body corporate to lease these spaces to owners. This would likely not be suitable where parking is section specific, such as a carport abutting a dwelling.

With the passage of time, parking in communal schemes has become more of an issue. The advent of two and multiple car families and the increase in the size of vehicles has resulted in competition for inadequate parking and parking in contravention of established rights and rules.

In many schemes inadequate penalties exist for the transgression of rules and recourse must be had to the relief offered in terms of s 39 of the Community Schemes Ombud Service Act 9 of 2011, which although effective, can be a drawn out process.

The tendency of many bodies corporate not to protect such rights or to enforce the payment of levies, whether by apathy or design, has aggravated matters.

In my experience it is better for developers at the outset to demarcate the parking areas on the sectional plans and to convey title to the areas to owners who must pay for such areas and their usage. They will then have a greater sense of ownership of their exclusive use rights in the event of them being threatened.

Their rights can further be protected by strong management rules, which comply with principles of administrative justice and make provision for penalties for non-compliance (neither penalties nor reference to the protection of exclusive use rights are dealt with in the Management Rules prescribed under the STSMA).

It is possible for the body corporate – authorised by unanimous resolution of owners – to demarcate exclusive use area retrospectively in terms of s 27(2) of the STA and s 5(1)(e) of the STSMA, the cost of which can be apportioned among benefitting owners.

It would be even better in my opinion if the legislation in the STA relating to the creation of schemes were to be amended to enable parking and any other EUA to be included as part of an adjoining sectional title unit to which they are allocated, although I realise that this will not be suitable for all schemes.

This would involve the definitions of a section and the common property in the STA being re-visited and no doubt other issues such as the differential levying of parking and dwelling components of a section, but these are obstacles that can surely be overcome.

A benefit that comes to mind is that the additional expense of the notarial cession of an exclusive use area to a new owner would be avoided. It would also overcome the vexed question of whether it is necessary to get a rate clearance certificate in order to cede an exclusive use area.

The process of establishing a new scheme, the conveyance of ownership and the administration and enforcement of the rules of sectional title schemes could hopefully likewise be simplified and improved.

Raymond Meyer BCom LLB (UKZN) is a legal practitioner at Browne Brodie Attorneys in Durban.

This article was first published in De Rebus in 2021 (Jan/Feb) DR 8.