It sometimes happens that a section is transferred to a new owner and then down the line it is found that the exclusive use area (EUA) corresponding to that section was not transferred. How do we rectify this?
This obviously refers to registered EUAs – in other words EUAs created in terms of the sectional plans. As they are registered at the Deeds Office in the owners name. Unlike EUAs created ito the rules that are linked to a section and not to an owner.
If the transfer happened recently it is possible to refer the owner back to the transferring attorneys who then needs to rectify the matter and get the EUA registered in his/her name.
This mostly happens when the unit is transferred from the Developer to the next owner.
The Sectional Titles Act deals with this in Section 27
27 Rights of exclusive use of parts of common property
(1) (a) If a part or parts of common property is or are delineated on a sectional plan for a specific purpose in terms of section 5 (3) (f), the developer must, when making application for the opening of a sectional title register and the registration of the sectional plan, impose a condition in terms of section 11 (2) in the schedule referred to in section 11 (3) (b), by which the right to the exclusive use of such part or parts of the common property delineated for this purpose on the sectional plan, is conferred upon the owner or owners of one or more of the sections.
(Para. (a) substituted by s. 8(a) of Act No. 29 of 2003 and s 9(a) of Act No 11 of 2010)
(b) A developer shall cede the right to the exclusive use of part or parts of the common property to the owner or owners of units in the scheme, by the registration of a unilateral notarial deed in their favour.
(Para. (b) amended by s. 17(a) of Act No. 63 of 1991 and substituted by s. 8(b) of Act No. 29 of 2003)
(c) If a developer ceases to be a member of the body corporate as contemplated in section 2(2) of the Sectional Title Schemes Management Act, Act 8 of 2011 any right to an exclusive use area still registered in his or her name vests in the body corporate free from any mortgage bond.
This section states that should the developer not be a member of the Body Corporate anymore – in other words he/she does not own any sections anymore – then the EUA right will cede to the Body Corporate.
Technically the Body Corporate can then sell the EUA right to any owner. But the suggestion would be that the owner gets the opportunity to get the EUA transferred to his/her name without paying additional fees – seeing that they already paid the Developer for the EUA.
Should the owner not wish to have the EUA registered in their name and the Body Corporate do not wish to keep the EUA and sell it to another owner in the scheme; then the Body Corporate (by special resolution) can cancel the EUA rights
Section 5 of the STSM Act
- (1) In addition to the body corporate’s main functions and powers under sections 3 and 4, the body corporate—
- 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;