How do we create exclusive use areas?

It is possible to give certain owners exclusive use rights over certain parts of the common property.

Quote from the STSM Act:

Section 1(1) – Definitions: “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;

The ST Act has the same definition

Quote from the ST Act:

Section 1(1) – Definitions:

‘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;

(Definition of “exclusive use area” substituted by s.1 of Act No 7 of 2005)

The Developer can create exclusive use rights before the establishment of the BC or the BC can create these rights at any stage after it has been established.

This can be created in two ways – on the plans or in the rules.

First prize will be EUAs created ito the plans. 

Exclusive use areas created ito the plans are registered real rights and the STSM Act states the following about it:

Quote from the STSM Act:

Section 5. (1) In addition to the body corporate’s main functions and powers under sections 3 and 4, the body corporate—

(e)may, upon unanimous resolution by the owners, request the delineation and cession of exclusive use rights to particular owners in terms of section 27(2) of the Sectional Titles Act;

(f) may, upon special resolution by owners, enter into a notarial deed of cancellation of an exclusive use right in terms of section 27(5) of the Sectional Titles Act;

To create EUA’s on the plans the sectional plans need to be amended, approved and registered.  EUA’s created in this way can be sold or bonded – it is a real right in terms of the law.  Creating eua’s ito the plans is done by following the procedures in Section 27 of the ST Act.

Basically the Body Corporate has to get a land surveyor or architect to draw up new sectional plans that include the EUA’s.  There will be costs involved for this.

The Body Corporate then has to pass a unanimous resolution for the creation of the EUAs ito the plans.

A Sectional Title attorney can assist with the process as the plans then needs to be approved by the Surveyor General and registered at Deeds Office.   The Deeds Office will issue title deeds for those EUAs as it is a registered real right.  There will be costs involved for this.

The second way of creating eua’s are ito the rules.  This used to be ST 27A of the ST Act but this was repealed by the STSM Act and now is Section 10 of the STSM Act.

Quote from the STSM Act:

Section 10(7) A developer or a body corporate may make management or conduct rules which confer rights of exclusive use and enjoyment of parts of the common property upon members of the body corporate.

History:
The previous Act just used to say it can be created ito the rules – now it specifies which rules.
The option to create exclusive use areas ito the rules was only added in 1997.

To create EUA’s in the rules you will need to decide which rules you are going to use to create the rights. The STSM Act does not specify which rules must be used. If it is created ito the Management Rules you will need to pass a unanimous resolution and if it is ito the Conduct Rules you will need to pass a special resolution. (And remember all rules must be approved by CSOS as well – there are no costs for this)