Exclusive Use Areas — A Closer Look at the Rules and Regulations
At the time of writing, Sectional Title Schemes consist of two property types.
The first type would be the resident-owned sections and units. The second type, meanwhile, would be the common property — owned by the Body Corporate and shared by everyone.
As you almost certainly know, there exists a subtype of common property known as the “exclusive use area”. You might also know that balconies, gardens, parking bays, and even storage sheds aren’t necessarily part of their users’ sections, but more commonly fall under this subtype instead.
The way this kind of land interacts with the rest of the Scheme can be intriguing. After all, it is technically still common property, and yet it lacks one of common property’s most defining features — being open to everyone.
If you hold rights to an exclusive use area, it might often feel like it’s part of your owned unit, and this has likely led to some confusion around rights and responsibilities.
For example, who oversees maintenance? If it’s common property, does it need to be formally assigned to your name or unit? Can you sell off your exclusive rights to others, or are you stuck with them?
If you want answers to the above, read on below.
Definitions and Differences
But before we dive too deep, let’s take a moment to go over the basics.
According to the Sectional Title Schemes Management Act (STSMA), common property is any land included within a Scheme that isn’t formally included in a section or unit.
Exclusive use areas, meanwhile, are defined as, “a part or parts of the common property for the exclusive use by the owner or owners of one or more sections”.
The mention of “owner or owners” means that multiple residents could, in theory, hold rights to the same exclusive use area. This isn’t common, however.
Check out the table below for some key differences between the property types. In all cases, assume you are the section owner or exclusive use right-holder.
|Exclusive Use Area
|Owned by you
|Owned by the body corporate
|Gives you some privacy
|Can be used by anyone in the body corporate
|Maintenance is innately handled by you
|You are personally responsible for keeping this property clean
|The body corporate is responsible for maintenance
An important point to emphasize is that your exclusive use areas are not your property, even though they are used (exclusively!) by you. Because they are not your property, they therefore don’t carry the same maintenance obligations.
Not even if you have sole access.
Holding your exclusive use rights generally comes with an additional cost, but so long as you meet that cost, keep the area reasonably tidy (e.g. water your garden, clear your parking bay of obstructions, dust your patio), and don’t cause any damages, maintenance is the Body Corporate’s responsibility, not yours.
But Why Additional Costs?
Section 3 (1)(c) of the STSMA is the basis through which right-holders are charged additional costs, which are there to ensure upkeep without being unfair to residents who don’t hold any exclusive use rights.
Although it does not specify, the best way for this regulation to be implemented is through attaching additional levies to exclusive use areas. We’ll explain why shortly.
“But wait,” you might be thinking, “Let’s go back a bit. I’ve heard rumours that some Schemes hold individual residents responsible for exclusive use maintenance, rather than the Body Corporate. What’s up with that?”
Specialist Finance CEO Michael Schaefer discusses this phenomenon. Remember, Section (1)(c) does not specify levies. At this point in time, it is often considered valid to make residents directly responsible for the financial costs of any maintenance the Body Corporate might perform in their exclusive use areas.
In theory, this means the Body Corporate still handles maintenance, while the right-holder pays for it. This can, to some, seem more attractive than paying extra levies.
In practice, however, this implementation encourages right-holders to be responsible for all aspects of maintenance as they scramble to avoid large, ad-hoc charges.
Many Schemes have chosen to go this route, even though implementing Section 3 (1) (c) like this arguably contradicts Section 13 (1) (c), which clearly states that an owner must “repair and maintain” their section, but only keep their exclusive use area in a “clean and neat condition”.
The above distinction shows a clear difference in intended levels of responsibility.
As you can imagine, encouraging residents to individually maintain their exclusive use areas — as if they were their actual property — is not a best practice, and can lead to all sorts of issues down the line.
Since exclusive use areas are still part of the Scheme’s common property, it’s important that their maintenance is carried out uniformly, which is best done through a levy system. Levies ensure that a set standard is maintained, and that the funds for doing so are ready ahead of time.
Ad-hoc charges, meanwhile, encourage residents to either cut corners or take on too much responsibility for the property type. This is not a universal problem, but it’s common enough to merit careful consideration.
Exclusive Use Subtypes
Now that we have covered the more universal properties of exclusive use areas, let’s dig a little deeper into the subtypes of our subtype. You see, not all exclusive use areas are made the same.
A resident might be enjoying a real right exclusive use area, but they could be enjoying a personal right exclusive use area instead.
What’s the difference?
These are created under the rules of Section 5 (1)(e) of the STSMA and will appear on the Scheme’s official sectional plans.
This form of exclusive use area is quite costly to set up, since it requires registering the area at South Africa’s Deeds Office. However, once done, this allows the exclusive use area to stand independently of any single unit within the Scheme.
Residents who own “real” rights may therefore sell those rights to any owner within the Body Corporate. Selling the rights to anyone who isn’t already an owner, however, is strictly forbidden, as is keeping those rights if you wish to sell off your last unit within a Scheme.
These are created under the rules of Section 10 (7) of the STSMA and will appear within the Scheme’s rules.
Although they won’t be distinct from the rest of the common property on a Scheme’s sectional plan, they WILL still be clearly demarcated on a layout plan accompanying the Scheme’s rules.
In these cases, the exclusive use area isn’t necessarily assigned to a specific person, but rather to a specific unit in the Sectional Title Scheme. By owning that unit, you also hold the rights to the corresponding exclusive use area.
Should you move out of the unit, you lose those rights, even if you still hold other units within the Scheme.
Since these rights only exist in the Scheme’s rules, you can also lose them if the rules are amended. Given the quorum and voting requirements for amending Scheme Management Rules, however, this isn’t normally a big concern.
To contact ANGOR with any questions, please go to: https://www.angor.co.za/