Addressing Exclusive Use Area Issues in Sectional Title Schemes

Exclusive Use Areas (EUAs) play a critical role in sectional title schemes by granting designated owners the exclusive right to use specific portions of the common property, such as gardens, parking bays, or balconies.

However, EUAs are often a source of contention due to misunderstandings, unauthorised modifications, and disputes over maintenance responsibilities. This article examines prevalent issues concerning EUAs and explores the legal avenues available to sectional title bodies corporate for effective resolution.

1. Unauthorised Alterations to EUAs

   A frequent issue arises when owners make structural modifications or improvements to their EUAs without obtaining the requisite approval from the body corporate. Such alterations may include the installation of pools, lapas, or built-in braais in garden EUAs, or the enclosure of balconies or patios to expand their living space. These modifications, when unauthorised, interfere with the use of common property and, in cases where they extend the section’s boundaries, may result in an inequitable distribution of levies.

   
   

   Legal Remedies

   Where an alteration does not amount to a section extension (i.e., it does not increase the floor area or boundaries of a section), the body corporate may approve the alteration through an ordinary resolution in terms of Prescribed Management Rule PMR 30(g). Such approval can be made conditional, with any breach of these conditions resulting in the withdrawal of approval.

   
   

   If an alteration results in an extension of a section, the owner must obtain a special resolution from the body corporate in accordance with Section 5(1)(h) of the Sectional Titles Schemes Management Act 8 of 2011 ("STSM Act"). The process outlined in Section 24 of the Sectional Titles Act 95 of 1986 must be followed, culminating in the registration of an amended sectional plan of extension at the Deeds Office and an adjustment of the participation quota schedule.

   
   

   In instances where an owner refuses to regularise or remove unauthorised alterations, the body corporate may seek an enforcement order through the Community Schemes Ombud Service ("CSOS") in terms of Section 39(2)(d) of the Community Schemes Ombud Service Act 9 of 2011 ("CSOS Act").

   
   

2. Disputes Over Maintenance and Repairs

   Unauthorised extensions or modifications to EUAs frequently lead to disagreements regarding maintenance and repair obligations. An owner who has unlawfully extended their section may later demand that the body corporate fund necessary repairs, despite the fact that the alteration was never authorised.

   
   

   Legal Remedies

   The scheme’s rules must be consulted to determine whether the default position under the STSM Act applies, where the body corporate arranges the work, and the EUA owner bears the cost, or whether the responsibility for maintenance has been specifically assigned to the owner.

   
   

   If the matter remains unresolved, either party may approach CSOS for a determination under Section 39(6)(a) or (b) of the CSOS Act. The body corporate should ensure that its rules explicitly delineate maintenance obligations for EUAs to mitigate future disputes.

   
   

3. Unauthorised Exclusive Use of Common Property (De Facto EUAs)

   A "de facto EUA" occurs when an owner assumes exclusive use of a section of common property without formal authorisation. In such cases, the body corporate cannot legally impose EUA contributions, even though the area is functionally restricted from use by other owners.

   
   

   Legal Remedies

   The body corporate may amend its rules under Sections 10(7) and 10(8) of the STSM Act to officially designate and allocate the EUA. If an owner refuses to accept responsibility for the EUA, the body corporate may apply to CSOS for an order under Section 39(6)(g) of the CSOS Act compelling the owner to assume the associated obligations.

   
   

4. Inequitable EUA Contributions

   EUA contributions are sometimes calculated unfairly, leading to a disproportionate financial burden on certain owners. For example, using a blanket formula may not accurately reflect the cost disparities between maintaining a parking bay and a landscaped garden.

   
   

   Legal Remedies

   Owners who consider their EUA contributions to be unreasonable may seek relief from CSOS under Section 39(1)(c) of the CSOS Act. The body corporate should ensure that EUA contributions are based on a fair assessment of anticipated maintenance costs to prevent disputes.

   
   

5. Unauthorised Use of EUAs

   It is not uncommon for EUAs to be utilised for purposes beyond their designated function, such as converting an EUA garage into a residential flatlet without the necessary approvals.

   
   

   Legal Remedies

   The body corporate must ensure compliance with Section 13(1)(g) of the STSM Act, which requires an owner to obtain the written consent of all other owners in the scheme before changing the use of an EUA. If an owner is unable to secure unanimous consent, they may apply to CSOS for relief under Section 13(2) of the STSM Act.

   
   

Exclusive Use Areas, while beneficial, frequently give rise to disputes in sectional title schemes. By ensuring compliance with applicable legislation, enforcing scheme rules, and utilising dispute resolution mechanisms such as CSOS, bodies corporate can effectively manage and resolve these challenges to maintain harmony within the community.