Sectional Titles Act, 1986 (Act No. 95 of 1986)Part VI : Exclusive use of Common Property and Servitudes27. 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 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; |
[Section 27(1)(a) substituted by section 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; |
[Section 27(1)(b) substituted by section 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 Titles Schemes Management Act, any right to an exclusive use area still registered in his or her name vests in the body corporate free from any mortgage bond. |
[Section 27(1)(c) substituted by section 11(a) of the Schedule of Act No. 8 of 2011]
| (d) | If a right to the exclusive use of a part or parts of the common property vests in a body corporate in terms of paragraph (c), the body corporate shall, in the prescribed form — |
| (i) | apply to the registrar for the issuing of a certificate or certificates of real right of exclusive use in its favour; and |
[Section 27(1)(d)(i) substituted by section 9(a) of Act No. 33 of 2013]
| (ii) | submit a certificate of compliance with any law dealing with vesting. |
[Section 27(1)(d) inserted by section 8(c) of Act No. 29 of 2003]
| (e) | The registrar shall, after consideration of the application in paragraph (d), issue such certificate or certificates in the prescribed form. |
[Section 27(1)(e) substituted by section 9(b) of Act No. 33 of 2013]
| (1A) | If no reservation was made by a developer in terms of subsection (1) and the body corporate has not yet been established in terms of section 2(1) of the Sectional Titles Schemes Management Act, the registrar may issue a certificate of real right in respect of a right of exclusive use as contemplated in section 12(1)(f) on application by the developer accompanied by the sectional mortgage bond and the written consent of any bondholder. |
[Section 27(1A) substituted by section 11(b) of the Schedule of Act No. 8 of 2011]
| (1B) | Upon compliance with subsection (1A) this Act shall apply with the necessary changes to such real right as if it had originally formed part of the application for the opening of the sectional title register and such certificate or certificates of real right shall be issued subject to any sectional mortgage bond against the land. |
[Section 27(1B) substituted by section 9(c) of Act No. 33 of 2013]
| (2) | A body corporate may, subject to the provisions of section 5(1) of this Act and section 5(1)(d) of the Sectional Titles Schemes Management Act, request an architect or land surveyor, to apply to the Surveyor-General for the delineation on a sectional plan in the manner prescribed of a part or parts of the common property in terms of section 5(3)(f) for the exclusive use by the owner or owners of one or more sections: Provided that no such delineation shall be made on the sectional plan in terms of this subsection if such delineation will encroach upon a prior delineation on the sectional plan of a part of the common property for the exclusive use by one or more of the owners. |
[Section 27(2) substituted by section 11(c) of the Schedule of Act No. 8 of 2011]
| (3) | A right to the exclusive use of a part or parts of the common property delineated on the sectional plan in terms of subsection (2) shall be transferred to the owner or owners on whom such right has been conferred by the body corporate by the registration of a notarial deed entered into by the parties and in which the body corporate shall represent the owners of all the sections as transferor. |
[Section 27(3) substituted by section 11(d) of the Schedule of Act No. 8 of 2011]
| (4) |
| (a) | An owner of a section in whose favour the right to the exclusive use of a part of the common property delineated on the sectional plan is registered, may transfer his or her interest in such right to the owner of another section in the scheme by the registration by the registrar of a notarial deed of cession entered into by the parties. |
[Section 27(4)(a) substituted by section 17(b) of Act No. 63 of 1991]
| (b) | If an owner ceases to be a member of the body corporate in terms of section 2(3) of the Sectional Titles Schemes Management Act, any right to an exclusive use area still registered in his or her name vests in the body corporate free from any mortgage bond. |
[Section 27(4)(b) substituted by section 11(e) of the Schedule of Act No. 8 of 2011]
| (c) | If a right to the exclusive use of a part or parts of the common property vests in a body corporate in terms of paragraph (b), the body corporate shall, in the prescribed form— |
| (i) | apply to the registrar for the issuing of a certificate or certificates of real right of exclusive use in its favour; and |
[Section 27(4)(c)(i) substituted by section 9(d) of Act No. 33 of 2013]
| (ii) | submit a certificate to the effect that the provisions of any law in connection with the vesting have been complied with. |
| (d) | The registrar must issue such certificate or certificates in the prescribed form. |
[Section 27(4)(d) substituted by section 9(e) of Act No. 33 of 2013]
[Section 27(4) substituted by section 8(d) of Act No. 29 of 2003]
| (5) | A right to the exclusive use of a part of the common property delineated on the sectional plan registered in favour of an owner of a section may with the written consent of the mortgagee of the exclusive use area and holder or a registered real right be cancelled by the registration by the registrar of a notarial deed of cancellation entered into by the holder of such right and the body corporate, duly authorized by a special resolution of its members, on behalf of all the owners of sections in the scheme. |
[Section 27(5) substituted by section 9(c) of Act No. 11 of 2010]
| (5A) | The provisions of subsection (5) apply with the necessary changes to the cancellation of a right to exclusive use of part of the common property registered in favour of a developer: Provided that such right may be cancelled by the developer prior to the establishment of a body corporate, with the written consent of the mortgagee of the exclusive use area, by means of the registration of a unilateral notarial deed of cancellation. |
[Section 27(5A) inserted by section 13 of Sectional Titles Amendment Act, 2022, Notice No. 1545, GG47830, dated 5 January 2023 - effective 5 January 2023]
| (6) | A right to the exclusive use of a part of common property registered in favour of an owner of a section, shall for all purposes be deemed to be a right to immovable property over which a mortgage bond, lease contract or personal servitude of usufruct, usus or habitatio may be registered. |
[Section 27(6) substituted by section 9(d) of Act No. 11 of 2010]
| (7) |
| (a) | Any person who holds two or more rights to exclusive use areas or undivided shares by one title deed may, subject to the provisions prescribed, obtain a separate title deed in respect of one or more of the rights to exclusive use areas held therein.. |
| (b) | At least one of the exclusive use areas or shares shall remain held by such title deed. |
[Section 27(7) inserted by section 8(e) of Act No. 29 of 2003]