An owner contacted us and asked what permission is needed to add a room to his section by enclosing the patio. We checked the sectional plans and rules and found that the patio is common property.
The minute an owner decides to increase the floor area of his/her section it constitutes an extension of the section ito the STSM Act. This includes adding a loft – even though the owner here is not extending the outside boundaries of the section they are increasing the floor area of the section.
History:
A couple of years ago this was a contentious issue as the Act stated that it is an extension of a section when the “limits” of the section was extended – it was then argued that installing a loft floor level will not extend the limits so it was allowed and not seen as an extension of a section. It was changed in 2003 by changing the word “limits” to “boundaries or floor area”.
The relevant owner is responsible for the whole process that includes amending, approving and registering the sectional plans and all the costs involved.
Section 24 of the ST Act stipulates the procedure to be followed:
- The owner must obtain a special resolution –
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—
- must, on application by an owner and upon special resolution by the owners, approve the extension of boundaries or floor area of a section in terms of the Sectional Titles Act; and
History:
Before 1997 the owner needed a unanimous resolution to extend his section
- The owner must then have an architect or land surveyor draft a sectional plan and get it approved by the Surveyor General
Quote from the ST Act:
24 (3) If an owner of a section proposes to extend the boundaries or floor area of his or her section, he or she shall if authorized in terms of Section 5(1)(h) of the Sectional Title Schemes Management Act, Act 8 of 2011, cause the land surveyor or architect concerned to submit a draft sectional plan of the extension to the Surveyor-General for approval.
(Sub-s (3) substituted by s 17(b) of Act No 44 of 1997 and by s 5(a) of Act No 29 of 2003 and amended by Section 19 of the Sectional Title Schemes Management Act, Act 8 of 2011)
- Where there is a deviation of more than 10% as a result of the extension the owner will also need to get permission from all bondholders.
Quote from the ST Act:
Section 24(6) An application to the registrar for the registration of a sectional plan of extension of a section, shall be accompanied by-
(d) any sectional mortgage bond to which the section may be subject, together with
(i) a certificate by a land surveyor or architect stating that there is not a deviation of more than 10 per cent in the participation quota of the relevant section as a result of the extension; or
(ii) if there is a deviation of more than 10 per cent, a certificate by a conveyancer stating that the mortgagee of each section in the scheme has consented to the registration of the sectional plan of extension of that section; and
(Para (d) substituted by s 17(d) of Act No 44 of 1997, by s 2 of Act No 7 of 2005 and by S7(b) of Act No 11 of 2010)
History:
The need for such a certificate was added into the ST Act in 1997 – it then stated “deviation of five per cent”. In 2005 it was amended to 10%. Also, before 2005 talked about a deviation in a section or sections – in 2005 it was amended to say “in any section”. In 2010 this was amended to say “in the relevant section”.
Practical example:
In order to see what the deviation in PQ’s is you would have to look at what the total area of all the sections added up is, then you would add the square meterage of the extension to this total. Then you would add the person who is extending’s old area add the extension area to this and then divide it by the total area of all sections plus the extension. This will then give you the person’s new PQ. Then you just take the New PQ less the Old PQ and divide this by the old PQ to give the percentage change.
- (extension area +old area of section)/ extension area + total of all sections on plan=x
- x-old pq/old pq X100= % increase/decrease in PQ
- Thereafter the Registrar will register the plans and amend all title deeds. The Registrar also notifies the local Council and the Surveyor-General.
Quote from the ST Act:
Section 24(7) When the requirements of this section and of any other relevant law have been complied with, the registrar shall register the sectional plan of extension of a section, and shall make an appropriate endorsement on the title referred to in subsection (6) (c), if the floor area of the section is increased by the extension, and such consequential endorsements against any deed registered against the title deed as may be necessary, and he shall furnish a copy of the sectional plan of extension to the local authority concerned and notify the Surveyor-General of the registration of the sectional plan of extension, and thereupon the Surveyor-General shall amend the original sectional plan and the deeds office copy of the sectional plan to reflect such extension of a section.
- The effect of an extension of a section will be that the relevant section will have a bigger floor area and PQ and all the other sections’ PQ’s will decrease.
The levies must then be adjusted accordingly but may only be adjusted once the plans have been registered at the Deeds Office.
I have seen instances where the Trustees have amended the levies on a section that extended without following the correct procedure. The STSM Act states that levies must be calculated on PQ’s of the plans (or nominated values if so decided) and they cannot therefore amend someone’s levies without having the plans amended first. What they can do is charge that person a rental for the area of the common property they extended onto while they wait for the process to be finalized.
The owner must also have the building plans amended at Council. In some instances, the area to be enclosed will be too small to be deemed a room and this will affect the approval from Council.
The floor area ration (F.A.R) of the property must also be taken into consideration – it is also known as bulk or coverage – this entails that only a percentage of the area of the stand may be covered by habitable buildings. If the allocation for the bulk has been reach for that property Council will not approve the plans. The Trustees must also take this into consideration when giving approval for enclosures.
The owner must also keep in mind the purpose of the area as shown on the sectional plans and building plans.
Quote from the STSM Act:
Section 13(g) when the purpose for which a section or exclusive use area is intended to be used is shown expressly or by implication on or by a registered sectional plan, not use nor permit such section or exclusive use area to be used for any other purpose: Provided that with the written consent of all owners such section or exclusive use area may be used for that purpose as consented to.
PMR 30 The body corporate must take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area does not—
- subject to the provisions of section 13(1)(g) of the Act, use a section or exclusive use area for a purpose other than for its intended use as —
- shown expressly or by implication on a registered sectional plan or an approved building plan;
- can reasonably be inferred from the provisions of the applicable town planning by-laws or the rules of the body corporate; or
- is obvious from its construction, layout and available amenities;
Quote from the ST Act:
24 Extension of sections
(1) …
(2) …
(Sub-ss (1) and (2) deleted by s 17(a) of Act No 44 of 1997)
(3) If an owner of a section proposes to extend the boundaries or floor area of his or her section, he or she shall if authorized in terms of Section 5(1)(h) of the Sectional Title Schemes Management Act, Act 8 of 2011, cause the land surveyor or architect concerned to submit a draft sectional plan of the extension to the Surveyor-General for approval.
(Sub-s (3) substituted by s 17(b) of Act No 44 of 1997 and by s 5(a) of Act No 29 of 2003 and amended by Section 19 of the Sectional Title Schemes Management Act, Act 8 of 2011)
(4) The submission of the draft sectional plan of extension of a section to the Surveyor-General, shall be accompanied by-
(a) the documents referred to in section 7 (2), suitably adjusted; and
(Para (a) substituted by s 17(c) of Act No 44 of 1997)
(b) in the case of the floor area of the section in question being increased by the extension, a revised schedule, in substitution for the schedule referred to in section 5(3)(g), reflecting the participation quotas of all the sections as modified after taking the increased floor area of the section in question into account.
(Para (b) amended by s 7(a) of Act No 11 of 2010)
(5) The provisions of section 7 (3) and (4) shall apply mutatis mutandis to the preparation and submission of a draft sectional plan of extension of a section to the Surveyor-General, and to the approval of such plan by him.
(6) An application to the registrar for the registration of a sectional plan of extension of a section, shall be accompanied by-
(a) two copies of the sectional plan of extension of a section;
(Para (a) substituted by s 14(a) of Act No 63 of 1991)
(b)…
(Para (b) deleted by s 5(b) of Act No 29 of 2003)
(c) the sectional title deed in respect of the section to be extended;
(Para (c) substituted by s 14(b) of Act No 63 of 1991)
(d) any sectional mortgage bond to which the section may be subject, together with
(i) a certificate by a land surveyor or architect stating that there is not a deviation of more than 10 per cent in the participation quota of the relevant section as a result of the extension; or
(ii) if there is a deviation of more than 10 per cent, a certificate by a conveyancer stating that the mortgagee of each section in the scheme has consented to the registration of the sectional plan of extension of that section; and
(Para (d) substituted by s 17(d) of Act No 44 of 1997, by s 2 of Act No 7 of 2005 and by S7(b) of Act No 11 of 2010)
(e) such other documents and particulars as may be prescribed.
(6A) The applicant must, if there is a deviation of more than 10 per cent as a result of such extension, send a notice by registered post to each mortgagee or where a mortgagee is a financial institution, to its headquarters, giving details of-
- the mortgage bond;
- the mortgagor and the reference number of the mortgage loan (if any);
- the proposed extension in relation to its size and location; and
- the impact on the security of such mortgagee as to the diminution of the participation quota allocated to the mortgage unit.
Provided that if a response to the notice is not received by the applicant within 30 days of the date of the posting of the notice by registered post, it shall be deemed that the mortgagee does not have any objection to the proposed extension and that the mortgagee consents thereto.
(Sub-s (6A) inserted by s 7(c) of Act No 11 of 2010)
(7) When the requirements of this section and of any other relevant law have been complied with, the registrar shall register the sectional plan of extension of a section, and shall make an appropriate endorsement on the title referred to in subsection (6) (c), if the floor area of the section is increased by the extension, and such consequential endorsements against any deed registered against the title deed as may be necessary, and he shall furnish a copy of the sectional plan of extension to the local authority concerned and notify the Surveyor-General of the registration of the sectional plan of extension, and thereupon the Surveyor-General shall amend the original sectional plan and the deeds office copy of the sectional plan to reflect such extension of a section.
(Sub-s (7) substituted by s 14(c) of Act No 63 of 1991)
(8) A sectional plan of extension of a section shall upon the registration thereof be deemed to be incorporated in the sectional plan registered in terms of section 12 (1) (a), and the provisions of section 13 (2) shall apply mutatis mutandis to such plan.