The role of the professional registered land surveyor in rectifying the extension to and addition of structures on an existing scheme are legally governed and complex. The municipal planning and building departments play a big role in this process. This is Part 1 of a two-part series. By Altus Strydom*
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 are a basic need to some owners. Unfortunately, many extensions have been executed but do not adhere to the Sectional Titles Act, building standards, regulations and town planning schemes, as prescribed by the different Acts. New legislation, which can lead to legal action against individuals, places a big onus on members of the body corporate and trustees to follow the correct procedures to approve the extension of units and extra buildings. The land surveyor is the person that must ultimately confirm via certificates issued to the Surveyor General that all building plans are correct and in compliance with the town planning scheme. One of our biggest problems is that body corporates appoint non-qualified persons or agents to do the work and, at the crucial stage, the land surveyor cannot certify the plans and the process starts from scratch.
What pitfalls can be expected with buildings and property in a sectional title scheme?
Levies are calculated incorrectly.
• The bank can demand an up-to-date building plan and sectional title plan.
• The municipality can force you to demolish illegal parts of buildings (new additions with no approved plans).
• In case of fire or any other disaster, you might find that the insurance company may use it as reason not to compensate for damages.
• The body corporate and/or trustees will be held responsible for anything going wrong (which is clearly stated in the Sectional Titles Management Act).
• It becomes a costly exercise if every unit that does an extension lodges their own application.
Bond holders’ consent (10% rule), according to the Sectional Titles Act – 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. According to Section 24 (6) (d) (ii), should the extension exceed 10% then the conveyancer must provide a certificate confirming that all mortgagees have consented to the sectional plan of extension of the scheme.
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 rules, duties, actions, responsibilities and risks of body corporates and trustees.
SECTIONAL TITLES ACT (NO. 95 OF 1986)
To provide for the division of buildings into sections and common property and for the acquisition of separate ownership in sections coupled with joint ownership in common property. A sectional title scheme must comply with the Sectional Titles Act sooner rather than later. This means that all buildings and their extensions must be represented on the sectional plan and all participation quotas are correct. A sectional plan of extension of the scheme plan must be lodged with the Surveyor General. In terms of the Sectional Titles Act, you may increase, subdivide and consolidate units.
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.
Extension of the sectional title scheme
The Sectional Titles Act allows for extending a scheme, as well as the consolidation and subdivision of units on condition that the scheme legally complies with other Acts.
Town planning schemes
Every municipality has a registered town planning scheme that regulates the use of property. The scheme is enforceable and regulates certain aspects of the property, such as the use, coverage, building lines, floor area ratio, future planning and many more aspects. 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 the submission to the Surveyor General, the surveyor must certify that the town planning criteria were met. The land surveyor might appoint other professionals to assist with the process.
Common terms that need to be understood comprise the following:
- Coverage: Every structure with a roof is part of coverage (bird’s-eye view). It is expressed as a percentage of the area of the property.
- Floor area ratio: The total floor area of all buildings is used for the floor area ratio calculation. It is expressed as a percentage 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 legalise the scheme.
NATIONAL BUILDING REGULATIONS AND BUILDING STANDARDS MANAGEMENT ACT (NO. 103 OF 1977)
To provide for the promotion of uniformity in the law relating to the erection of buildings in the areas of jurisdiction of local authorities; for the prescribing of building standards; and for matters connected therewith.
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. 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 SANS 10400-A: 2010. ‘Minor building work:’ (p17) describes minor building works in B10 (p57), which states that building plans are not required for minor works. In general, anything with a foundation is a structure and requires a building plan. The council requires a building plan for any permanent structure:
- Wendy houses, pergolas with a slab, are considered a permanent structure. If no slab is installed, then it is not considered a permanent structure
- For swimming pools, an approved building plan is required, and the SDP needs to be updated. Compulsory safety features are required, such as a boundary fence or safety cover. A de-mountable swimming pool above ground level does not need an approved plan.
- A garden wall is a structure.
- Carports and lapas with roofs are structures.
As pertains to permanent structures, the following steps should be taken:
- Obtain confirmation as to whether the town planning scheme will allow further extensions (coverage, floor area ratio, building lines).
- Appoint an architect or technologist to draw up plans.
- Appoint an engineer to certify plans.
- Get plans approved by the body corporate and lodge with city council.
SECTIONAL TITLES MANAGEMENT ACT (NO. 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. The effect of this is that the body corporate and not the trustees or managing agent is ultimately responsible if any illegal actions occur.
SPATIAL PLANNING AND LAND USE MANAGEMENT ACT (NO. 16 OF 2013; SPLUMA)
SPLUMA aims to develop a new framework to govern planning permissions and approvals, sets parameters for new developments, and provides for different lawful land uses in South Africa. SPLUMA is a framework law, which means that the law provides broad principles for a set of municipal laws that will regulate planning. Certain municipalities have 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 the upgrading of services.
COMMUNITY SCHEMES OMBUD SERVICE ACT (NO. 9 OF 2017; CSOS)
The CSOS is the ombudsman 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 Part 2 of this article series.)
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.
To ensure compliance, the following steps must be followed in conjunction with the services of a professional, registered land surveyor:
– Obtain a copy of the approved sectional title plan from the Surveyor General.
– The body corporate must supply a copy of the approved building plan and zoning certificate to the land surveyor.
– The land surveyor will scrutinise the sectional title plan, site development plan, building plan and town planning requirements. (Land surveyors perform these tasks because they are ultimately responsible for sign-off before issuing certificates.) The land surveyor might appoint an architect, town planner and other officials to assist.
– Appoint an engineer and fire specialist to do a site inspection to identify any areas that needs attention or any problems that might arise.
– The body corporate is required to assist the land surveyor by preparing a bill of quantities for various professionals for quotation purposes. Body corporates must ensure that the necessary funds are available for the various processes.
Property ownership founds and builds societies. This is the rationale for the multifaceted legislation that exists in South Africa and worldwide. Employing a professionally registered land surveyor ensures that owners have security of tenure. The same applies when it comes to the legal approval of any building or extension.
*Altus Strydom is a professional
land surveyor and chairperson: Northern
Provinces at the South African Geomatics Institute (SAGI).
28 IMIESA November/December 2020