Sectional Titles: Extension to and Additions of Structures on an Existing Scheme.
Sectional Title ownership is a legal way of owning part or parts of a building. Many schemes are quite old and extensions and additions to units is a basic need to some owners. Unfortunately many extensions were executed not adhering to building standards and regulations as prescribed by the different acts.
New legislation place a big onus on members of the body corporate to follow the correct procedures to approve the extension of units
Pitfalls with Buildings and Property in a Sectional Title Scheme.
What happens when you want to sell or something goes wrong?
- The building society will demand an up to date building plan and sectional title plan.
- 10% rule:
Section 24 (6) (d) (i) prescribes that a land surveyor or architect must confirm that the proposed extension does not exceed the 10% extension to a unit.
Section 24 (6) (d) (ii) Should the extention exceed 10% then the conveyancer must provide a certificate confirming that all mortgagees have consented to the sectional plan of extension of the scheme.
- In case of fire or any other disaster you might find that the insurance use it as reason not to pay.
- The body corporate and/or trustees may be held responsible for anything going wrong, because it is quite clearly stated in the above acts that control sectional title schemes.
ACTS THAT AFFECT SECTIONAL TITLE SCHEMES
There are principal acts that affect Sectional Title Schemes and these all have an influence on the participation quota schedules, management, duties, actions, responsibilities and risks of body corporates and trustees
A Sectional Titles Act 95 of 1986
As discussed above it is to everybody’s advantage to have a sectional title scheme that complies with the Sectional Titles act rather sooner than later.
This means that all buildings and its extensions must be represented on the Sectional plan and all participation quotas are correct.
When the floor area and/or boundaries of a unit or common property is altered, it is necessary to lodge a Sectional plan of extension of scheme plan with the Surveyor General.
In terms of the sectional titles act you may increase, subdivide and consolidate units.
The land surveyor may only lodge with the Surveyor General when
- The site development plan is up to date
- All buildings have approved building plans
- The scheme complies with the Town Planning scheme of the local authority
- The land surveyor must be in a position to issue a certificate to the SG and Deeds office that everything is correct.
NOTE: Section 24 deals with the procedures that needs to be followed if the extension to a unit is more than 10% of the area of the unit. It is compulsory to get bond holder’s consent.
EXCLUSIVE USE AREAS
If the scheme has no exclusive use areas, it is necessary to have this attended to before extension of the units and approval of structures in gardens (exclusive use areas) can be dealt with.
The exclusive use plan and extension of units can be done separately.
- It is not necessary to do all the extensions of units in one go. If building plans of certain units are approved, the land surveyor can proceed with that part.
- The consent of all the bond holders in the scheme is necessary if an extension exceeds 10% of the area of the unit.
EXTENSION OF THE SECTIONAL TITLE SCHEME
Once the criteria in B and C below have been met, the land surveyor may survey and lodge the amending sectional title plan of extension of the units.
When is it a building and when not?
Parking areas – If covered and with or without a slab, it is classified as a building. Garages – Building
Lapas – Building
Closing of stoep – Building
Open stoep – Debatable but not a building
When does a building or part of a building become part of the unit?
This is a widely debated subject and the sectional titles act is not specific, but in general additions to the building is regarded as extensions to the unit.
Garages and covered parking – can be a part of a unit or allocated as exclusive use. Certain schemes have additional garages which are not allocated to units. These can remain common property or become units and then rented to tenants.
Patios (open and closed)- can be part of the unit. It is advisable to spell that out in the rules
Lapas and garden sheds are debatable. If on a concrete slab it is a structure and needs a building plan. The management rules should clarify this, but in general it does not become part of a unit but it can be exclusive use.
In most schemes there are grey areas, but the rule need to be laid down by the body corporate.
A swimming pool is not part of a building and it is not necessary to include these in the sectional title plan.
Note: The body corporate may raise an extra levy for units with pools and lapas.
B Town Planning Schemes
Additional buildings or structures might cause the buildings on site to exceed the allowable coverage or floor area ratio or encroach over building lines.
The land surveyor must survey and confirm whether the specified criteria are met. In his submission to the Surveyor General he must certify that the town planning criteria were met.
The land surveyor might appoint other professionals to assist with process.
Coverage-Every structure with a roof is part of coverage (birds eye view). It is expressed as % of the area of the property.
Floor area ratio-The total floor area of the building is used for floor area ratio calculation. It is expressed as the a % of the area of the property.
Building line-The distance from the boundary where no buildings are allowed.
If necessary, a rezoning must be done to legalize the scheme.
The process in short:
- Land surveyor supply updated as-built plan for application purposes(can be used for Sectional title later in process)
- Town planner prepares proposed application for various entities incl city council departments for preliminary comments.
- Town planner or attorney obtain bond holders consent.
- Town planner lodge application
C National Building Regulations and Building Standards Management Act 103 of 1977
ILLEGAL BUILDINGS AND STRUCTURES
Any addition to an existing or new building needs body corporate approval, an approved site development plan (SDP) and building plan.
Owners can be instructed to attend to this individually before a certain date. If not done, the body corporate can take action by informing the municipality about the illegal buildings on the terrain and the worst case scenario is that it will be demolished.
This phase is necessary before the survey may be lodged at the Surveyor General.
When is a building plan required?
The relevant explanation to clarify the National building regulations is found in the SANS 10400-A: 2010
Minor building work: p17 describes minor building works in B10 p 57 which states that building plans are not required for minor works. Anything with a foundation is a structure and requires a building plan.
With regards to the above the council requires a building plan for any PERMANENT structure.
- Wendy houses, carports, pergolas with a slab is considered a permanent structure. If no slab then it is considered not a permanent structure.
- For swimming pools you do need an approved building plan and the SDP need to be updated there has to be safety features such as a fence around or safety cover over. An above ground pool that is de mountable no building plan is required
- A garden wall is a structure
- Existing illegal structures:
- Acquire an up-to date as-built site plan to determine whether a rezoning is necessary or not
- Determine whether the scheme complies with the Town planning Scheme.If not a re- zoning is necessary. If it complies lodge the SDP for approval.
- Update and lodge a site development plan in terms of the National building regulations and building structures Act.
- Thereafter draw up building plans and lodge for approval.
Professionals involved: Land surveyor, architect/technologist, structural engineer and fire consultant.
An electrician, plumber and town planner follow later before issuing of occupation certificate after approval of building plans.
- New structures:
– Confirm whether body corporate will allow structure.
– Confirm whether Town planning Scheme will allow further extensions (coverage, floor space ratio, building lines).
– Appoint architect or technologist to draw up plans.
– Appoint engineer to certify plans.
– Get plans approved by Body corporate and lodge with city council.
D Sectional Titles Management Act 8 of 2017.
Purpose of Act
To provide for the establishment of bodies corporate to manage and regulate sections and common property in sectional titles schemes and for that purpose to apply rules applicable to such schemes; to establish a sectional titles schemes management advisory council; and to provide for matters connected therewith.
‘‘body corporate’’, in relation to a building and the land in a sectional title scheme, means the body corporate of that building referred to in section 2(1);
‘‘common property’’, in relation to a scheme, means—
(a) the land included in the scheme;
(b) such parts of the building or buildings as are not included in a section; and
(c) land referred to
‘‘exclusive use area’’ means a part or parts of the common property for the exclusive use by the owner or owners of one or more sections;
‘‘owner’’, in relation to a unit or a section or an undivided share in the common property forming part of such unit, means, subject to subsection (5), the person in whose name the unit is registered at a deeds registry in terms of the Sectional Titles Act or in whom ownership is vested by statute
S2 (1) Any person other than the developer becomes an owner of a unit in a scheme
(5) The body corporate is, subject to the provisions of this Act, responsible for the enforcement of the rules and for the control, administration and management of the common property for the benefit of all owners.
(7) The body corporate has perpetual succession and is capable of suing and of being sued in its corporate
Trustees of body corporate
S7 (1) The functions and powers of the body corporate must be performed and exercised by the trustees
Fiduciary position of trustees
(Definition: A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties.)
S8 (1) Each trustee of a body corporate must stand in a fiduciary relationship to the body corporate. A trustee:
(a) must act honestly and in good faith
(b) must avoid any material conflict between his or her own interests and those of the body corporate, and in particular—
1. not receive any personal economic benefit, direct or indirect, from the body corporate
2. notify every other trustee of the nature and extent of any direct or indirect material interest as soon as such trustee becomes aware of such interest.
(1) A scheme must be regulated and managed by means of rules.
(2) (a) Management rules
(b) Conduct rules
E The Spatial Planning and Land Use Management Act 16 of 2013(SPLUMA)
There is a new Act: Spatial planning and land use management Act 16 of 2013(SPLUMA)
Certain municipalities included Sectional titles in their by-laws. SPLUMA cannot override the Sectional titles Act but the scheme must comply with all Town planning scheme stipulations.
In general these by-laws are much stricter when it comes to compliance with the Sectional titles act and building regulations.
If there are illegal structures, the council might require additional actions like new building plans, environmental impact studies and upgrading of services.
F Community Schemes Ombud Service Act 9 of 2017
The CSOS is the Ombud for all community schemes in South Africa. It provides a dispute resolution service, regulates and monitors the quality of all community scheme governance documentation, provides training and consumer awareness.
This Act will not be discussed in this paper.
G Deeds registries Act No 47 of 1947
Once all criteria have been met and the Sectional title plan has been approved at the Surveyor General the extension of the scheme can be registered in the deeds office.
Contact a Professional Registered Land surveyor:
1. Scrutinize the sectional title plan, site development plan, building plan and town planning requirements. (Land Surveyor does this because he is ultimately responsible to sign it off before issuing certificates). It is advisable to appoint an architect as well.
2. Appoint an engineer and fire specialist to do a site inspection to ID any areas that needs attention or any problems that might arise.
3. Land surveyor prepares bill of quantities for various professionals for quotation purposes.
4. Body corporate ensures that the necessary funds are available for the various processes.