An exclusive use area (EUA) is a portion of the common property in a sectional title scheme allocated for the exclusive use of the owner or owners of one or more sections. Typical examples include parking bays, gardens, patios, storerooms and other areas designated for the exclusive use of particular owners.
An EUA does not become part of the owner's section. The underlying property remains common property, while the owner holds a right of exclusive use and enjoyment over the area.
There are two principal ways in which an EUA may be established: as a registered real right under section 27 of the Sectional Titles Act 95 of 1986 (STA), or through rules of the body corporate under section 10(7) of the Sectional Titles Schemes Management Act 8 of 2011 (STSMA).
Where an EUA is delineated on the registered sectional plan, section 27 of the STA provides for the registration of the right of exclusive use.
In the case of an EUA provided for when the scheme is established, the developer must impose the appropriate condition when applying for the opening of the sectional title register. The developer must then cede the right of exclusive use by registration of a unilateral notarial deed in favour of the relevant owner or owners.
A body corporate may also initiate the creation of an EUA after establishment of the scheme. Section 27(2) permits the body corporate to request an architect or land surveyor to have the relevant common property delineated on the sectional plan. Once delineated, the right is transferred to the relevant owner or owners by registration of a notarial deed.
A registered EUA is therefore a real right capable of registration and transfer. Section 27(6) expressly provides that such a right is treated as a right to immovable property and may, subject to the applicable requirements, be mortgaged, leased or otherwise dealt with as provided by law.
Not every EUA is registered as a real right.
Section 10(7) of the STSMA permits a developer or body corporate to make management or conduct rules conferring rights of exclusive use and enjoyment over parts of the common property. These are commonly referred to as rule-created EUAs.
The rules must include:
A rule-created EUA therefore does not involve the registration of a separate real right in the Deeds Registry in the same manner as a section 27 EUA. The right derives from the applicable rules of the scheme.
The rules themselves are subject to the statutory requirements applicable to the amendment, adoption and filing of sectional title scheme rules. The Community Schemes Ombud Service (CSOS) regulates and monitors sectional title governance documentation, including scheme rules.
Older information on EUAs sometimes refers to section 27A of the Sectional Titles Act as the provision governing rule-created EUAs.
This is no longer correct.
Section 27A was repealed with effect from 7 October 2016 when the STSMA came into operation. The current statutory basis for creating EUAs through scheme rules is section 10(7) and (8) of the STSMA.
Accordingly, references in older sectional title documentation or articles to “section 27A EUAs” should be considered in the context of the legislation applicable when those rights were created.
The answer depends on how the EUA was created.
Where the EUA is a registered real right under section 27, the registration and title documentation must be examined to establish the owner's rights. The right may be evidenced by a certificate of real right of exclusive use or relevant registered notarial documentation.
The sectional plan must also delineate an EUA where applicable.
Where the exclusive use right is created by the scheme's rules, there is generally no separate Deeds Registry title deed for the EUA. The allocation is governed by the registered rules and the accompanying layout plan and schedule contemplated by section 10(7)–(8) of the STSMA.
The distinction is therefore important: absence of a separate EUA deed does not necessarily mean that an owner has no exclusive use right.
An owner should not assume that a particular parking bay, garden or other portion of common property belongs exclusively to a particular section merely because it has historically been used by that owner.
The legal position must be determined from the sectional plan, registered title documentation, scheme rules and other relevant records.
If no valid exclusive-use right has been created, the area remains common property and cannot simply be treated as the private property of one owner.
The existence of an EUA also has implications for maintenance and contributions.
Section 3 of the STSMA provides for additional contributions in circumstances involving exclusive use areas, including EUAs registered or created by the rules. The prescribed rules and the scheme's applicable rules must therefore be considered when determining responsibility for the maintenance and repair of an EUA.
The applicable conduct rules may also regulate the use, appearance and permitted alterations of an EUA. Owners should accordingly obtain the current registered rules before making structural or other significant changes to an exclusive use area.
When purchasing or dealing with a sectional title unit where an EUA is important to the transaction, the following should be verified:
This is particularly important on transfer. A reference to a “parking”, “garden”, “carport” or similar area in a sale agreement or marketing material does not, by itself, establish a legally enforceable exclusive-use right.
An exclusive use area remains common property, but the right to use it exclusively may be legally secured in different ways.
Where the status of an EUA is uncertain, the sectional plan, title documentation, registered rules and relevant Deeds Registry records should be reviewed before the right is relied upon in a sale, transfer, mortgage or dispute.
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