Rules regarding alterations in a sectional title scheme

Owners of units in a sectional title scheme are subject to more restrictions than those who own a freehold property.

For example, when you want to make alterations to your section you generally need the approval of the body corporate, as well as, the local authority’s consent before you can start. A freehold property owner is not subject to any rules governed by body corporate.

It is thus essential for sectional owners to be aware of correct procedures regarding any alterations that they intend to make, and then of course to comply with these restrictions.

In section 24 of the Sectional Titles Act 95 of 1986, the requirements for extensions are clearly set out for owners of units in such a scheme.

Below are some answers to general questions regarding this Act:

What is an ‘extension’ of a section?

Any alteration to your section which increases its boundaries or floor area is considered an extension of the section.

Where are your sections boundaries?

In terms of section 5(4) of the Sectional Titles Act 95 of 1986, a section is owned to the median line or midpoint of its dividing floors, walls and ceilings. The boundaries of each section, shown as solid lines are indicated on the scheme’s sectional plan filed at the Deeds Registry.

So if your section is on the ground floor and you decide to push out your bedroom into the garden area, you are almost certainly going to be extending the boundaries and floor area of your section and will be hit by the provisions of section 24 of the Act.

Is it possible to extend the floor area of your section?

It is possible to do so without actually extending the boundaries of your section.

If your section has a double volume ceiling and you want to build a mezzanine level within your section, you will be extending the floor area of your section and section 24 of the Act will apply.

Although your intended use of the loft area may just have been for storage space, you will have effectively extended the floor area of your section.

What authorization do you need to get before you can legally extend your section?

Section 24(3) of the Act requires that a Sectional Title owner first obtain a special resolution of the body corporate authorizing the proposed extension before being allowed to make the alterations.

This would involve putting a proposal to owners, normally via the trustees, and perhaps asking them for a general meeting where your proposal can be considered and voted upon.

Alternatively, you could send or take your proposed resolution to each owner individually and get written consents.

How is a special resolution passed?

A special resolution can be passed in one of two ways:

1.    At a general meeting of the body corporate; or
2.    By the necessary majority of owners agreeing in writing in what is known as a ‘round robin’ procedure.

A special resolution at a meeting requires the following:

•    Notice of the meeting, specifying the proposed resolution, must be sent to all persons entitled to attend general meetings and at least thirty days notice must be given unless the trustees have decided that shorter notice is appropriate;
•    At the meeting a quorum of persons entitled to vote must be present or represented; and
•    Of those present or represented and entitled to vote, seventy-five percent in number and in value must vote in favour of the resolution.

A special resolution by round robin procedure requires the following: Seventy-five percent in number and value of all owners must agree to the resolution in writing.

Once the special resolution has been passed, what else needs to be done from a sectional title perspective?

The approval of the special resolution is subject to it containing conditions that apply to the building operations, which includes an obligation to pay a deposit to cover the body corporate against any damages it may suffer in the process.

It could also approve of the extension on the condition that the person pays the body corporate a capital amount as compensation to other owners for the loss of the use of the common property that the extension will cover.

The trustees should not sign any building plans for submission to the local authority until the required special resolution is obtained.

Your next step is to get the buildings completed to the point they can be measured. During this process you will need to liaise with the local authority and ensure that all their requirements are met.

You will need to instruct a land surveyor or architect to draw up a draft sectional plan of extension and submit this plan to the Surveyor-General for approval.

Once the Surveyor-General has approved this plan application must be made to the Registrar of Deeds to register the plan.

If according to the plan your extension causes a deviation of more than ten percent in the participation quota of any section in the scheme, then you will also need to get the consent of the mortgagee of every unit in the scheme.

You may be able to simplify this process by requesting general consents from the major banks which hold mortgage bonds over the units in the scheme.

Van Deventers & Van Deventers Incorporated - Sectional Title Scheme Attorneys

Van Deventers & Van Deventers Incorporated are able to assist body corporates with the legal concerns regarding alterations and sectional title schemes. Contact Us.

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