Coming Soon – The Sectional Titles Amendment Bill, 2017
Article by Alan Levy of Alan Levy Attorneys, Notaries & Conveyancers
situated in Waverley, Johannesburg
The Sectional Titles Amendment Bill, 2017 is due to commence soon and amend the
Sectional Titles Act 95 of 1986. It deals with amending 17 sections, 16 of which are listed
below with a short comment by me, to better your understanding of the amendments. In italics
in some cases below, is the actual wording of the amendments (please note: not all the
amendments are dealt with below and for a full understanding, the Amendment Bill must be
consulted (see https://www.parliament.gov.za/bill/2293655):
Amendment to Section 1 of the STA
1. Definitions – the definition of an ‘exclusive use area’ will be extended. Its definition was,
‘a part or parts of the common property for the exclusive use by the owner or owners of
one or more sections’. Added thereto will be ‘or by the occupant or occupants thereof
recognized by law, as contemplated in this Act’.
Amendment to Section 4 of the STA
2. Approval of Development Schemes – Section 4 (3) and (4) which deal with a proposed
new scheme (previously un-sectionalized) which is wholly or partially let for residential
purposes will be amended. The amendment provides that at the meeting with lessees
which the developer has to call, lessees ‘or their respective agents’ may be present and
may put questions to the developer.
Amendment to Section 7 of the STA
3. Approval of draft sectional plans by Surveyor General – Section 7 (2) (a) which deals
with a certificate issued by an architect/land surveyor which must accompany the
submission of a draft sectional plan to the Surveyor-General will be amended to state that
the certificate must also state that the proposed division into sections and common
property complies with section 26 (2) of the Spatial Planning and Land Use Management
Act (SPLUMA).
Amendment to Section 14 of the STA
4. Amendment and cancellation of sectional plans – Section 14 (3) will be amended to
provide for the amendment of a sectional plan where an incorrect plan prejudices another
party to include that the Surveyor-General can advise the registrar of deeds in regards to
exclusive use areas, and not only sections, which are affected by the defect. Section 14
(5) will be amended to provide that the registrar of deeds shall thereafter make the
necessary endorsements on the deeds registry copy of the sectional plans and the title
deed concerned. Section 14 (8) will be amended to provide that where a body corporate
is in existence and the registered sectional plan is cancelled by an order of court, the
provisions of Section 49 (3) and (5) apply.
Amendment to Section 15B of the STA
5. Registration of transfer of ownership and other rights – Section 15 (1) will be
amended to provide for, on the application by the developer or body corporate, the noting
by the registrar on the title deed concerned of the lapse of a reservation in terms of Section
25 (developers right of extension).
Amendment to Section 17 of the STA
6. Alienation and letting of common property – Section 17 (4B) will be amended to
provide for, deletion of the allowance to cancel a part of an exclusive use area where the
common property, on which the exclusive use area is situate, is alienated. Section 17 (4C)
will be amended to provide for the requirement for the written consent of the holder of a
registered real right of extension and the cancellation of such right of extension, to alienate
a portion of land on which a real right of extension is registered.
Amendment to Section 21 of the STA
7. Approval of plan of subdivision or consolidation by Surveyor-General – Section 21
will be amended to provide for a developer to submit a plan for subdivision or
consolidation to the Surveyor General for approval to subdivide a section or consolidate
two or more sections, registered in his name, prior to the establishment of the body
corporate.
Amendment to Section 22 of the STA
8. Registration of subdivision of section – Section 22 will be amended to provide for a
developer who wishes prior to the establishment to a body corporate to subdivide a
section or consolidate two or more sections registered in his name, to cause a land
surveyor/architect to submit a draft sectional plan of subdivision or consolidation to the
Surveyor-General for approval. And to provide that any lease or other deed embodying
any other real right registered against the section at the time of subdivision must also be
submitted to the registrar of deeds to endorse such document. And to provide for the
deletion of the requirements for partition previously set out in the section. Further to
provide that when an application for subdivision is made by the developer that such
application must be accompanied by a conveyancers certificate certifying that the
developer has disclosed in writing to any person who has acquired a unit that an
application has been made for subdivision of a section in the Scheme and that a deed of
alienation whereby the developer sells a unit to an acquirer and where the subdivision
has not been disclosed, shall be voidable at the option of the acquirer.
Amendment to Section 23 of the STA
9. Registration of consolidation of sections – Section 23 will be amended to provide for
the scenario where a developer prior to the establishment of a body corporate wishes to
register a sectional plan of consolidation of two or more sections. To provide that on
application for consolidation of sections, that any lease or other deed embodying any
other real right registered against the section at the time of consolidation be provided to
the registrar of deeds. To provide that when a developer makes an application for
consolidation, a conveyancer’s certificate must accompany the application stating that no
unit in the scheme has been sold or alienated and if a unit was so alienated that the
developer has disclosed in writing to the acquirer that application has been made for the
registration of the sectional plan of consolidation of the relevant sections. Further that a
deed of alienation in which the consolidation has not been disclosed, shall be voidable at
the option of the acquirer.
Amendment to Section 24 of the STA
10. Extension of sections – Section 24 will be amended to provide for the scenario where a
developer prior to the establishment of a body corporate wishes to extend the boundaries
or floor area of a section. To provide that on application for extension of a section, that
any lease or other deed embodying any other real right registered against the section at
the time of extension be provided to the registrar of deeds. To provide that when a
developer makes an application for extension, a conveyancer’s certificate must
accompany the application stating that no unit in the scheme has been sold or alienated
and if a unit was so alienated that the developer has disclosed in writing to the acquirer
that application has been made for the registration of the sectional plan of extension of
the relevant section. Further that a deed of alienation in which the extension has not been
disclosed, shall be voidable at the option of the acquirer.
Amendment to Section 25 of the STA
11. Extension of schemes – Section 25 will be amended to provide for the scenario where
the documentation referred to in subrule 2 has been lost or destroyed, that the body
corporate/developer may apply to file replacement documentation. To provide that if the
developer exercises his right of extension, that not only in respect of units, but also in
respect of exclusive use areas, that once the exclusive use area is completed, that the
developer must apply for the registration of the plan of extension and the inclusion of the
exclusive use area in the relevant sectional title register. To provide that where no
reservation of a right of extension was made by the developer or where it lapses, that it
vests in the body corporate and that the body corporate upon compliance with section 5
(1)(b) of the STSMA, can obtain a certificate of real right. Further that the body corporate
to alienate the right also needs the consent of the mortgagees of the units, which cannot
be withheld, without good cause in law. To provide for the deletion of the current condition
under section 25 (10) (c), that when applying to the registrar of deeds to register the
extension, that the mortgagee to the right of extension, if any, consents to the substitution
of the security from the registered right of extension to the sections depicted on the
sectional plan of extension. To provide for which mortgage bonds must accompany the
application to the registrar of deeds for registration of the plan of extension and for the
endorsement of the mortgage bond registered against the right of extension to be over
the new sections and exclusive use areas.
Amendment to Section 26 of the STA
12. Extension of schemes by addition of land to common property – Section 26 will be
amended to provide that various of the sub-sections apply to land acquired by the
developer to extend the common property. To provide that when a developer acquires
such land, a conveyancer’s certificate must accompany the application stating that no unit
in the scheme has been sold, donated or exchanged and if a unit was so alienated but
not registered, that the developer has disclosed in writing to the acquirer that application
has been made for the registration of a plan of extension of the common property. Further
that a deed of alienation in which the extension has not been disclosed, shall be voidable
at the option of the acquirer.
Amendment to Section 27 of the STA
13. Rights of exclusive use of parts of common property – Section 27 will be amended
to provide for the cancellation of a right to exclusive use of part of the common property
in favour of the developer.
Amendment to Section 32 of the STA
14. Participation quotas – Section 32 (1) and (2) will be amended to refer to Section 17 of
the STSMA and to delete the reference to section 48 of the STA.
Amendment to Section 54 of the STA
15. Sectional Titles Regulation Board – Section 54 will be amended to provide that 9
members, instead of 7, in addition to the chief registrar of deeds and chief Surveyor General shall
sit on the sectional titles regulation board. Further that to make up this difference of 2 people,
that 2 conveyancers instead of 1 shall sit on the board and that a person referred to in section 2
of the Deeds Registries Act, shall also be appointed to the board, being a particular deeds registry
head or deputy. Further that regulations made by the minister shall be published in the gazette
at least one month before the date specified in the relevant notice as the date of commencement thereof.
Amendment to Section 60 of the STA
16. Savings and transitional provisions – Section 60 will be amended to provide that an
owner who prior to the commencement of the STA acquired in terms of an agreement or
rules made under the 1971 Act, the right to an exclusive use area, that upon the owners
request, the body corporate shall cede, and no longer transfer, such right to the owner by
the registration of a notarial deed entered into by the parties. Further that the notarial deed
of cession of the right to exclusive use must be accompanied by a sectional plan on which
it is delineated the parts of the common property for the exclusive use by the owners.
This article is not intended to constitute legal advice of any sorts. The writer will not be
responsible for any damages whatsoever suffered as a result of any reliance placed thereon.
E: enquiries@alattorneys.co.za
T: 010 001 8209
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