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Sectional Titles Act, 1986 (Act No. 95 of 1986)

Part III : Registration and Common Property

17. Alienation and letting of common property

 

(1) The owners and holders of a right of extension contemplated in section 25 may, if authorised in terms of section 5(1)(a) of the Sectional Titles Schemes Management Act , direct the body corporate on their behalf to alienate common property or any part thereof, or to let common property or any part thereof under a lease, and thereupon the body corporate shall, notwithstanding any provisions of section 20 of the Deeds Registries Act, but subject to compliance with any law relating to the subdivision of land or to the letting of a part of land, as the case may be, have power to deal with such common property or such part thereof in accordance with the direction, and to execute any deed required for the purpose: Provided that if the whole of the right referred to in section 25 or section 60(1)(b) is affected by the alienation of common property, such right shall be cancelled by the registrar with the consent of the holder thereof on submission of the title to the right.

[Section 17(1) substituted by section 5(a) of the Schedule of Act No. 8 of 2011]

 

(2) Any transaction referred to in subsection (1) shall be accompanied by a copy of the authorisation concerned, certified by two trustees of the body corporate: Provided that where the transaction in question requires to be notarially executed, such authorisation so certified shall be produced to the notary public concerned and be retained by him or her in his or her protocol.

[Section 17(2) substituted by section 5(b) of the Schedule of Act No. 8 of 2011]

 

(3) The registrar shall—
(a) register the transfer of land comprised in the common property, and thereupon the land shall revert to the land register and the registrar shall make an appropriate endorsement and entry on such title deed and in his or her records to give effect thereto: Provided that if a portion only of the land comprised in the common property and on which no section or part of a section is erected, is so transferred, no endorsement thereof shall be made on the sectional title deeds of the owners of units: Provided further that in such a case where a portion only of the land comprised in the common property is transferred, a diagram of such portion approved by the Surveyor-General in terms of the Land Survey Act, 1997 (Act No. 8 of 1997), shall be annexed to the said title deed;

[Section 17(3)(a) substituted by section 11 of Act No. 63 of 1991]

(b) notify the Surveyor-General and local authority of any reversion of any land to the land register under paragraph (a), and upon receipt of such notification the Surveyor-General shall make an appropriate endorsement on the original sectional plan and the deeds registry copy thereof; and
(c) register a notarial lease of land comprising common property by making an appropriate endorsement against the schedule of conditions referred to in section 11(3)(b), and no endorsement thereof shall be made on the sectional title deeds of the units: Provided that where a lease is registered over a portion only of the land comprised in the common property, a diagram of such portion approved in terms of the Land Survey Act, 1997 (Act No. 8 of 1997), shall be annexed to the deed of lease.

[Section 17(3) substituted by section 11(b) of Act No. 44 of 1997]

 

(4)
(a) Where, pursuant to subsection (1), it is sought to alienate a portion of the common property on which a section is erected, the registrar shall not register the transfer unless the registration of the section in question has been cancelled with the written consent of the owner.
(b) Where pursuant to subsection (1) it is sought to let land which forms part of the common property or a portion thereof on which a section or part of a section is erected, the registrar shall not register the lease, unless it is made subject to any right which the owner of the section or part of the section may have.
(c) When the registration of a section is cancelled under paragraph (a), the quota of the section shall lapse and the quotas of the remaining sections shall be proportionately adjusted.
(d) The registrar shall notify the Surveyor-General and the local authority whenever the registration of a section has been cancelled under paragraph (a), and upon receipt of such notification the Surveyor-General shall effect the necessary amendments to the original sectional plan, the deeds registry copy of the sectional plan and the schedule thereto specifying the quota of each section.

[Section 17(4) substituted by section 11(c) of Act No. 44 of 1997]

 

(4A)
(a) Where part of a section is erected on a portion of the common property the unaffected part or parts of the section in the scheme shall be substituted in accordance with an amended participation quota schedule, which shall be referred to the Survey-General for approval.
(b) The Surveyor-General shall notify the registrar of a change or amendment of a sectional plan in terms of paragraph (a) which affects the description or extent of a section, and thereupon the registrar shall register the transfer of the part of the land included in the scheme.

[Section 17(4A)(b) substituted by section 5(a) of Act No. 33 of 2013]

(bA) Registration of the transfer under paragraph (b) shall be effected upon written consent of the owner of the section and, where applicable, holders of any registered real rights over the section: Provided that the registrar shall not register the transfer of the common property unless the sectional title deed of the affected section and, where applicable, the title deeds of the holders of any registered real rights over the section is endorsed with the new extent as reflected in the amended participation quota schedule.

[Section 17(4A)(bA) inserted by section 5(b) of Act No. 33 of 2013]

(c) The registrar shall notify the Surveyor-General and the local authority whenever an endorsement has been made in terms of paragraph (b), and on receipt of such notice the Surveyor-General shall make the necessary amendments on the original sectional plan, the deeds registry copy of the sectional plan and the schedule thereto specifying the quota of each section.

[Section 17(4A) inserted by section 11(d) of Act No. 44 of 1997]

 

(4B)
(a) Where in terms of subsection (1) it is sought to alienate a portion of land on which an exclusive use area or part thereof is registered, the registrar shall not register the transfer, unless the registration of the exclusive use area or part thereof has been cancelled with the written consent of the holder.
(b) The registrar shall notify the Surveyor-General and the local authority when the registration of an exclusive use area or part thereof has been cancelled in terms of paragraph (a), and on receipt of such a notice the Surveyor-General shall make the necessary amendments on the original sectional plan and on the deeds registry copy of the sectional plan.

[Section 17(4B) inserted by section 11(d) of Act No. 44 of 1997]

 

(4C) The provisions of subsection (4B) shall apply with the necessary changes where,in terms of subsection (1), it is sought to alienate a portion of land on which a real right of extension in terms of section 25 or any part of such right is registered.

[Section 17(4C) inserted by section 5(c) of Act No. 33 of 2013]

 

(5) When the whole of the land comprised in the common property shown on the sectional plan is transferred by the body corporate pursuant to this section, the sectional title deeds of the owners of units, the title deeds of the holders of any registered real right in the units, the title deeds of the holders of exclusive use areas and the title deeds of the holders of any registered real right over the exclusive use areas, shall be surrendered to the registrar for cancellation, and the title deed of any other registered real right in the land or exclusive use area, together with the consent of the holder of such right, shall be surrendered to the registrar for endorsement and the registrar shall close the sectional title register and notify the Surveyor-General and the local authority that the sectional title register has been closed.

[Section 17(5) substituted by section 5(d) of Act No. 33 of 2013]

 

(6) Upon receipt of the notification referred to in subsection (5), the Surveyor-General shall cancel the original sectional plan and the deeds registry copy of the sectional plan.