Cape Town - Home buyers risk losing garages, parking bays and gardens if they assume these are automatically transferred to them on purchase, warns a property lawyer.
Sectional title schemes provided for exclusive use areas such as gardens, parking bays and garages, explained director at Werksmans Attorneys Aidan Kenny.
“The Sectional Title Act provides for two mechanisms in terms of which an owner of a unit (flat) can become entitled to an exclusive use area. The first mechanism is by virtue of a Title Deed registered at the Deeds Office.
“The second mechanism is by virtue of the rules of the Body Corporate, where the use and enjoyment of the exclusive use area is allocated to a specific owner in terms of the rules of the Body Corporate,” he said.
In terms of the second mechanism, Kenny said the owner of a unit cannot transfer the exclusive use area by virtue of registration at the Deeds Office. When the owner transfers the unit, the new owner becomes entitled to the use and enjoyment of the exclusive use area.
However, Kenny said the first mechanism of ownership of an exclusive use area has an inherent pitfall, which is regulated in terms of the Sectional Titles Act.
“If an owner ceases to be a member of a body corporate as contemplated in Section 36(2) of the Sectional Titles Act (namely ceases to be the owner of a unit), any right to an exclusive unit area still registered in his or her name vest in the body corporate," he said.
This has the effect that an exclusive use area such as a garage, parking bay or garden will vest in the body corporate if the owner of a unit sells the unit, without the exclusive use area.
“The owner loses out. We’ve seen this happen often,” cautioned Kenny, while warning that a failure to attend to a diligence can lead to disastrous consequences.
"If the unit is transferred without the exclusive use area, which will, if the owners has no further units in the Sectional Title Scheme, ultimately vest in the Body Corporate without compensation to the owner."
The owner of an exclusive use area has no right of recourse against the body corporate and if an appeal to the moral being of the body corporate fails, a High Court application can probably be brought to test the constitutionality of the Sectional Titles Act.
This section of the Sectional Title Act operates and is akin to an expropriation provision, without compensation, as the section does not mention any right of recourse against the body corporate for compensation.
This is despite the fact that Section 25 of the Constitution of the Republic of South Africa provides for inter alia compensation to be paid if property is expropriated with Section 27(4), being the wolf dressed in sheep clothing.
"The legislator must intervene and amend the Sectional Titles Act to bring the same in line with the spirit, purport and object of the Constitution,” Kenny argued.