Sectional Title Series
A series of articles to help everyone understand in practical terms what Sectional Title is about.
WHAT IS AN EXCLUSIVE USE AREA?
It is actually just what it says. An area of the common property that is set aside for the exclusive use of one owner of a unit in a building. Typical of this would be a garden area, a carport, a storeroom. To qualify as an exclusive use area, the part of the common property allocated for the use of individual owners would have to be noted in some way. In the first Sectional Titles Act (STA) in 1976, body corporates could simply draw up a simple plan and mark the area that it was agreed could be used exclusively by an particular owner. Parking plans as an example were drawn up and the number of the flat that had been allocated a parking bay was set out in the parking plan. “That parking was then mine!”. The problem was that nothing was fixed in stone. Tenants and owners swapped parking spaces and trustees could just decide to move parkings around. What was needed was a way of having permanent allocation of exclusive use area which could not be changed on a whim. This is when Exclusive Use Areas (EUA) were developed in a later version of the STA in 1986. This allowed for exclusive use areas to be registered in the deeds office and either shown on the sectional title plan or done by a change to the rules. Personally, I feel that the EUAs should be shown in the sectional title plans as this is where you look for details of units. It is also a much more accurate way of showing it drawn up by a land surveyor (or architect in those days). It is also a public document which can be accessed from the Land Surveyors site. Doing it in the rules is far less easy to obtain. Rules seldom include EUA plans when you get them and these plans, although allegedly to scale are often so small that it is difficult to accurately know what a EUA is. The main reason that developers put them into the rules is that it is a far cheaper option than putting it into the sectional plan.
The EUA area plan should show, what the area of the exclusive us is and what it is intended to be used for. For example a private garden is usually noted as T1 (tuin), a garage a G1, and a store as S1. Like a unit, an exclusive use area can only be used for the purpose that it was intended for. You cannot convert and exclusive use garden into a carport for example, without getting permission from the body corporate and after following the correct procedure. Also worthy to note, is that the Trustees cannot give permission for a change of use.
EUA are supposed to be registered in the Deeds Office and linked to a specific unit. In our experience this is not always done or at least not properly recorded by the Deeds Office. We noted this when we obtained the list of transfers directly from the Deeds Office to confirm the EUAs in a large scheme. Many of the EUAs were not noted on the title deeds of the units that owned them.
When valuing a sectional title unit the value of these EUAs should be included in the valuation. Not including EUA parking for instance, would dramatically alter the valuation of the unit. On the other hand, including a non-EUA in your valuation would have the opposite effect. Many buildings, especially those registered before 1980 still cling on to the old way of allocating areas to owners by having a traditional plan. They are supposed to have a proper accurate plan drawn up and have it registered in the rules or as part of the sectional title plans but seldom do because of the costs involved.
The EUA owner has a right to use their areas exclusively against any other owner in the building. In the case of a EUA garden for example this area would be for the exclusive use of the unit that it is tied to. What can it be used for? Well anything that you would normally use a garden for which would include having a lawn, growing flowers or vegetables, having a braai, allowing kids to play and the like. But you still cannot make alterations without permission of the body corporate, because the rules that no alterations may be made to the common property without their permission still stands. So you have no right to put in a swimming pool and have to follow the normal rules for applying for permission to do so.
The holder of the EUA is also responsible for its upkeep – not the body corporate! So they must cut the grass and sweep the leaves and maintain the tap and the like. It can get a bit confusing because are they also responsible for the painting of the outside of the building that forms the back wall of their EUA area? Personally, I think that you have to consider normal items to remain the responsibility of the body corporate – what about parking lines in the basement parking which would be part of an EUA area? The EUA holder is responsible for any expenses occurring in relation to the EUA. So, insurance of the area, repairs and maintenance, cleaning and certainly electricity, water and security should be paid by the owner of the EUA. This is sometimes difficult to allocate (lighting in the basement garage) so the act envisages that each EUA is allocated an additional levy over and above the unit levy, which is sufficient to cover the costs of maintaining that area; including where there is no electricity or water meter a reasonable amount to cover the cost of their use by this EUA owner. Remember this is not a rent for use of a EUA but to cover the costs of maintaining this area.
When selling a sectional title unit it is important to include any EUA areas especially so that the buyer knows which EUA is included in the sale of a unit. For example, selling a flat must include the sale of the EUA for the two parking bays in the basement.
Can an EUA be sold independent to a unit? An EUA can be sold between unit owners so that the one owner gains use of the area covered by the EUA but nobody can own an EUA if they do not own a unit in the building. EUAs are always attached to a unit in the building. EUAs are taken into account in the value of a unit and are used by banks when valuing sectional title units. Remember it is a registered real right and has value.