The concept of exclusive use rights can be complex to navigate in a sectional title scheme. However, not taking the time to understand the boundaries of a scheme’s Exclusive Use Areas can break a body corporate’s bank, writes Ashwini Singh.
WORDS & PHOTO: SUPPLIED
Singh says that, as the name suggests, an Exclusive Use Area (“EUA”) is a part of a sectional title scheme’s common property to which a specific section owner holds the exclusive use right over (to the exclusion of the other owners in the scheme). Due to an EUA being a type of common property that is designated for exclusive use, a section owner’s EUA rights are enforceable against the body corporate of a scheme.
At present, there are two types of EUAs in sectional title schemes. The first type of EUA is created under Section 27 of the Sectional Titles Act 95 of 1986, which is an EUA that is reflected in a sectional plan for a scheme.
The second type of EUA is created in terms of Subsection 10(7) of the Sectional Titles Schemes Management Act 8 of 2011, by which the EUA is conferred in the scheme’s management or conduct rules with an accompanying plan that is registered in the Deeds Office and with the Community Schemes Ombud Service.
Either way, an EUA’s lawful boundaries are indicated on a plan that is registered in the Deeds Office. Despite this, disputes still often arise with regard to the interpretation of a plan in respect of an EUA’s boundaries. Hence the importance of seeking expert opinion from a Professional Land Surveyor.
South African Geomatics Council
In South Africa, Professional Land Surveyors must be registered with the South African Geomatics Council (the SAGC) to be able to practice in that discipline, as outlined in the Geomatics Profession Act 19 of 2013. Of interest, Subsection 13(2)(a) of the Geomatics Profession Act prohibits persons who are not appropriately registered with the SAGC from practicing as if they are a registered professional.
Effectively, that means a layperson cannot provide opinion on matters that require geomatics expertise. Therefore, only a Professional Land Surveyor who is registered with the SAGC can provide expert opinion on land surveying matters, including EUA boundaries.
Expert opinion regarding an EUA’s boundaries was at the forefront of the recent unreported Durban High Court case of C SINGH & ANOTHER v BODY CORPORATE OF THE RIDGE SS 198/1982 (D334/24), to which the Plaintiffs therein sought a Declaratory Order against the Defendant to declare the boundaries of the Plaintiffs’ EUA as per a Deeds Office plan that was registered in 1986. In support of the Plaintiffs’ Declarator, expert opinions from two Professional Land Surveyors registered with the SAGC were submitted for the court’s consideration.
Consequently, the Defendant was unable to submit opposing expert opinion from a separate Professional Land Surveyor that disputed the Plaintiffs’ claim, resulting in a Consent Order whereby the Defendant conceded to the lawful boundaries of the Plaintiffs’ EUA being as per the Deeds Office plan that was registered in 1986. The Defendant was further directed to pay the Plaintiffs’ costs, which could have been avoided had the Defendant conceded to the lawful registered boundaries of the Plaintiffs’ EUA prior to litigation commencing.
Professional land surveyor
Evidently, no body corporate member (trustee or owner), managing agent or attorney can replace the importance of a registered professional land surveyor whose legislative mandate is to provide expertise and expert opinion on land surveying matters, such as EUA boundaries.
It goes without saying that such a specialised area of expertise requires a properly qualified professional with the appropriate credentials to provide expert opinion in order for members of a body corporate to make informed decisions regarding a scheme’s registered EUAs.
* Ashwini Singh is a law academic, ACFESA Affiliate and PEG Associate.
