Extending a Section in a Body Corporate Community Scheme onto Common Property

In terms of sectional title legislation in South Africa, owners must obtain proper authorisation before extending onto common property. Common property is collectively owned by all the owners within the sectional title scheme in equal and undivided shares and therefore any alterations or extensions to common property typically require the consent of all the owners.

The legislation does prescribe a process to create exclusive use rights which are usage rights over common property. These can either be a personal right created through the rules (unanimous resolution to create through the management rules or special to create through the conduct rules) or a real usage right created by notarial cession which usage right would then reflect on the title deed and be capable of being sold.

It is important to understand the difference between a usage and property right as common property always remains owned by all members in equal and undivided shares even when a usage right has been allocated to certain member/s. The legislation prescribes a unanimous resolution to create real right exclusive use and a special resolution to cancel. The legislation does still not cater for amendments to exclusive use areas and professionals have advised that when extending onto common property you are both cancelling and creating these areas and therefore a unanimous resolution would apply. This is relevant to extensions to sections as it changes the permission required for the extension from a special to a unanimous resolution.

Here are some key points to consider regarding owners extending onto common property:

1.       Consent Requirement: Any proposed extension onto common property would require the consent of the body corporate. This consent is typically obtained through a special resolution at a general meeting or in writing from the members of the body corporate. A special resolution is obtained by approval of 75% of members of a body corporate in writing or 75% of members present or represented at a duly convened general meeting where the quorum would normally be a minimum of 33.33% of all members present or represented.

2.       Section 24 of the Sectional Titles Act establishes a framework for obtaining consent for extensions or alterations within sectional title schemes, ensuring that such changes are carefully considered and approved by the relevant parties. Initially the legislation prescribed a unanimous resolution for extensions to sections, but the legislation was altered owing to this resolution being difficult to obtain in practice and now the legislation requires a special resolution.
3.       Exclusive Use Areas (EUAs): Some sectional title schemes may have designated exclusive use areas within the common property, either through a body corporate rule or through a notarial cession (real right). Where the exclusive use is created through the rules the same resolution required in the creation would be required to amend the area to cater for the proposed extension. As noted above, in cases where there is real right exclusive use designated to common property, the members would require a unanimous resolution to extend onto common property as they are not only requiring consent for an extension to the section, but to amend the real right exclusive use area.

4.       Architectural Guidelines and Regulations: Owners must comply with any architectural guidelines or regulations set forth by the sectional title scheme. These guidelines ensure that any extensions or alterations maintain the aesthetic and structural integrity of the property and comply with local regulations.

5.       Town Planning Regulations: Owners must also comply with local town planning regulations and bylaws when extending onto common property. This includes obtaining necessary planning permissions and adhering to zoning restrictions, building codes, and any other relevant regulations enforced by the local municipality.

6.       Professional Consultation: Owners considering extending onto common property should seek professional advice from architects, engineers, and legal experts familiar with sectional title regulations to ensure compliance with all relevant laws and regulations.

In summary, while there may be circumstances where owners can extend onto common property with proper authorisation, such extensions typically require the consent of the body corporate and must comply with all relevant laws, regulations, and guidelines.

If you require any assistance, please feel free to contact your portfolio manager in this regard.