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The Sectional Title Amendment Act, No 29 of 2003, promulgated on 14 November 2003, contains a number of amendments of which sellers and purchasers of sectional title units, as well as Body Corporates and Managing Agents should take note of.

Body Corporates have always had recourse to the justice system to address problematic issues, but the Act now provides that where it is unable to obtain a unanimous resolution (e.g. to enable it to alienate portion of the common property), it may approach the court for relief. However, if the rights of any owner will be adversely affected, the written consent of that owner must still be obtained.

The Act previously provided that any owner who wished to extend the "limits" of his or her section, must obtain the approval of the Body Corporate. This had given rise to interpretation problems of what an extension entails. For instance, is the enclosure of a balcony to be regarded as an extension of the limits? This uncertainty has now been eliminated by an amendment to the Act which states that an extension to the "boundaries" or "floor area" of a section requires the approval of the Body Corporate.

Any uncertainty as to whether an exclusive use area may be ceded to a person not owning a unit in the scheme, has also been removed by the insertion of a stipulation which provides that such an area can only be ceded to an owner of "a unit in the scheme".

If a seller of a section, who also owns an exclusive use area, ceases to be a member of the Body Corporate on registration of transfer and is not an owner of another section in that scheme, it is imperative that the exclusive use area is simultaneously ceded to the purchaser. If the cession is not registered simultaneously, the act now stipulates that the area will vest in the Body Corporate who will have to take out a certificate of real right of exclusive use area in its favour.

Of interest to Body Corporates also is an amendment which provides that when a developer ceases to own a share in the common property, all exclusive use areas still registered in the developer's name, vest in the Body Corporate. The Body Corporate will then apply to the Registrar of Deeds for a certificate of real right of exclusive use area. Prior to the amendment any such areas had to be ceded to the Body Corporate by the developer, who often ceased to exist or who were unwilling to co-operate to register such a cession.

The section dealing with when and by whom levy contributions are due and payable, has been amended to the effect that such levies are due and payable by the owners of sectional title units who were such on the date of the passing of the resolution by the Trustees of the Body Corporate to that effect. Previously the levy was only payable when the contributions became due. Managing Agents and Body Corporates will, when asked to provide the transferring attorney with a levy clearance certificate, now request payment upfront of the full outstanding levies for the year, analogous to the position with rates clearance certificates for conventional transfers.

It should also be noted that, in terms of the abovementioned amendment, registered owners at the time a resolution in respect of special levies is passed, shall now be responsible for payment thereof.




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