Exclusive Use Is Not Ownership in Sectional Title Schemes

You have used the same parking bay for 15 years. Your garden has always been treated as “your” garden. You have maintained the storeroom next to your unit for as long as you can remember.

Does that mean you own it?

Not necessarily.

In sectional title schemes, there is an important difference between owning an area and the having exclusive right to use the area.

What is an exclusive use area?

An exclusive use area (“EUA”) is part of the common property reserved for the exclusive use and enjoyment of the owner of a particular section.

Common examples include:

• parking bays;

• gardens;

• courtyards;

• patios;

• and storerooms.

An EUA can be created in different ways. A registered exclusive use right is reflected in the sectional plan and registered in the Deeds Office as a real right.

Exclusive use rights can also be created through the rules of the body corporate in accordance with the Sectional Titles Schemes Management Act 8 of 2011. These rights are different from registered real rights and do not give the owner ownership of the underlying common property.

The important distinction is therefore: exclusive use does not mean exclusive ownership.

What if you have been using the area for years?

Long-term use does not automatically create ownership or an exclusive use right.

The legal requirements for creating rights over common property still need to be considered.

This was illustrated in the recent Body Corporate of the Primavera Sectional Title Scheme v Godby judgment in the Western Cape High Court, Cape Town.

The court considered a dispute involving areas including a parking bay and storeroom that had been used exclusively by an owner for many years, with historic rules and drawings relating to their allocation.

The Court nevertheless found that the statutory requirements for creating enforceable exclusive use rights had not been complied with.

The judgment is an important reminder that history and legal entitlement are not always the same thing.

What should you check?

When buying a sectional title property, check the sectional plan, title deed and the body corporate rules to establish whether the area is:

1. part of the section;

2. a registered exclusive use area; or

3. allocated as an exclusive use area in terms of the rules.

The bottom line

A parking bay does not become privately owned because one family has used it for 20 years. A garden does not automatically become part of a section because the owner has maintained it.

In sectional title, make sure what happens on the grounds matches what has been legally created and recorded.

At Snymans Inc, we specialise in property law and conveyancing, including sectional title matters. We help buyers, sellers, trustees and property professionals ensure that exclusive use rights are properly understood, recorded and dealt with before they become a dispute.

Written by: Hester Kruger
Moderated and approved by: Rohula Kgabu-Mnyayi

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