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Subdivision of exclusive use areas

5 August 2004

It has always been the opinion of the deeds office that an exclusive use area has the nature of a servitude. It is also trite law that one cannot subdivide a servitude. The holder of the right to use an exclusive use area has exactly that - a right of use over a part of the common property to the exclusion of others. It was clearly the intention of the legislator that the holder of that right will have only a right to use the area in question, that he/she be able to cede, mortgage and otherwise encumber the right in line with other similar rights over land.

It must be borne in mind that the only person who can, once a unit in a scheme has been transferred to a purchaser, deal with a common property in a scheme, is the body corporate. An exclusive use area is an exception to this, as obviously the holder of the right may do as referred to above. However, any variation or cancellation to such a right must be dealt with by the body corporate. The holder of a servitude over land cannot, except for the waiving of his servitude, unilaterally vary the servitude without the co-operation of the land owner. Similarly , if an exclusive use area is to be modified or cancelled, it is the body corporate who will do this, once the right to use the area to the exclusion of others has been cancelled in accordance with section 27(5) of the Sectional Titles Act of 1986. Thereafter an amendment is made to the Sectional Plan.

If subdivision is allowed, what about consolidation of exclusive use areas? As with subdivision, servitudes cannot be consolidated.

It is evident that the Act and the practice currently in use are in line with the nature of the exclusive use as that of a servitude and should be left as it is. It also appears to be on a sound footing with the common law.

At the Conference of Registrars held during November 2003, a resolution was passed to refer the matter to the Sectional Titles Regulation Board.

Republished with permission.

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