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

Part V : Extension of Schemes

25. Extension of schemes by addition of sections and exclusive use areas or by addition of exclusive use areas only

 

(1) A developer may, subject to the provisions of section 4(2), in his or her application for the registration of a sectional plan, reserve, in a condition imposed in terms of section 11(2), the right to erect, complete or include from time to time, but within a period stipulated in such condition or such extended period as may be agreed upon (by unanimous resolution of the body corporate and with the consent of the bondholders existing on the date of the taking of the unanimous resolution, which resolution and consent must be obtained by the notary and filed in his or her protocol) prior to the expiry of the stipulated period, by way of a bilateral notarial deed, for his or her personal account—
(a) a building or buildings;
(b) a horizontal extension of an existing building;
(c) a vertical extension of an existing building,

on a specified part of the common property, and to divide such building or buildings into a section or sections and common property and to confer the right of exclusive use over parts of such common property upon the owner or owners of one or more sections, or to delineate exclusive use areas on or in specified parts of the land and buildings in terms of section 5(3)(f) and to confer the right of exclusive use over such areas upon the owner or owners of one or more sections.

[Section 25(1) substituted by section 8(a) and (b) of Act No. 33 of 2013]

 

(2) In the event of a reservation in terms of subsection (1), the application for the registration of the sectional plan shall, in addition to the documents referred to in section 11(3), be accompanied by—
(a) a plan to scale of the building or buildings on which—
(i) the part of the common property affected by the reservation;
(ii) the siting, height and coverage of all buildings;
(iii) the entrances and exits to the land;
(iv) the building restriction areas, if any;
(v) the parking areas; and
(vi) the typical elevation treatment of all buildings,

are indicated;

[Section 25(2)(a) substituted by section 15(b) of Act No. 63 of 1991]

(b) a plan to scale showing the manner in which the building or buildings are to be divided into a section or sections and exclusive use areas or the manner in which the common property is to be made subject to the rights of exclusive use areas only;

[Section 25(2)(b) substituted by section 8(d) of Act No. 11 of 2010]

(c) a schedule indicating the estimated participation quotas of all the sections in the scheme after such section or sections have been added to the scheme;
(d) particulars of any substantial difference between the materials to be used in the construction of the building or buildings and those used in the construction of the existing building or buildings;

[Section 25(2)(d) substituted by section 8(d) of Act No. 11 of 2010]

(e) [Section 25(2)(e) deleted by section 8(e) of Act No. 11 of 2010];
(f) the certificate of real right which is to be issued in terms of section 12(1)(e); and

[Section 25(2)(f) substituted by section 15(c) of Act No. 63 of 1991]

(g) such other documents and particulars as may be prescribed.

[Section 25(2) substituted by section 8(c) of Act No. 33 of 2013]

 

(3) [Section 25(3) repealed by section 9(a) of the Schedule of Act No. 8 of 2011]

 

(4) A right reserved in terms of subsection (1), vested in terms of subsection (6) or registered in terms of subsection (6A), and in respect of which a certificate of real right has been issued—
(a) shall for all purposes be deemed to be a right to immovable property which admits of being mortgaged; and

[Section 25(4)(a) substituted by section 8(f) of Act No. 11 of 2010]

(b) may be transferred by the registration of a notarial deed of cession in respect of the whole, a portion or a share in such right: Provided that in the case of a cession affecting only a portion of the land comprising the scheme only such portion shall be identified to the satisfaction of the Surveyor-General.

[Section 25(4)(b) substituted by section 18(a) of Act No. 44 of 1997]

 

(4A) The registrar may not register a cession of real right of extension or a portion or an undivided share therein, unless a certificate by a conveyancer is produced to the registrar confirming that, as at the date of registration—
(a) if a body corporate is deemed to be established in terms of section 36(1), the body corporate has certified that all moneys due to the body corporate by the cedent in respect of the said real right have been paid, or that provision has been made to the satisfaction of the body corporate for the payment thereof; or
(b) if a body corporate is not deemed to be established, no moneys are payable.

[Section 25(4A) inserted by section 8(g) of Act No. 11 of 2010]

 

(5) A right reserved in terms of subsection (1) may be exercised by the developer or his or her successor in title thereto, even though the developer or his or her successor in title, as the case may be, has no other interest in the common property, by the addition of rights of exclusive use: Provided that the rights of exclusive use must he ceded within 12 months after their creation, either to the body corporate of the scheme or to one or more registered owners of a section or sections in the scheme.

[Section 25(5) substituted by section 8(h) of Act No. 11 of 2010]

 

(5A)
(a) If the right reserved in terms of subsection (1) is exercised, the developer or his or her successor in title shall immediately after completion of the relevant unit apply for the registration of the relevant plan of extension and the inclusion of such unit in the relevant sectional title register.
(b) If the developer or his or her successor in title fails to take such steps and fails to register the relevant plan of extension within 90 days of completion for occupation of the unit, the developer or his or her successor in title shall be liable to the body corporate for the amounts payable in terms of section 3(1)(b) of the Sectional Titles Schemes Management Act as if the unit had been included in the relevant sectional title register on the date of completion.

[Section 25(5A)(b) substituted by section 9(a) of the Schedule of Act No. 8 of 2011]

(c) The certificate contemplated in section 15B(3)(a)(i)(aa) shall not be issued unless the amounts in question are paid to the body corporate.

[Section 25(5A) inserted by section 3 of Act No. 7 of 2005]

 

(6) If no reservation was made by a developer in terms of subsection (1), or if such a reservation was made and for any reason has lapsed, the right to extend a scheme including land contemplated in section 26, shall vest in the body corporate, which shall be entitled, subject to this section, section 5(1)(b) of the Sectional Titles Schemes Management Act and after compliance, with the necessary changes, with the requirements of paragraphs (a), (b), (c), (d) and (g) of subsection (2), to obtain a certificate of real right in the prescribed form in respect thereof.

[Section 25(6) substituted by section 9(c) of the Schedule of Act No. 8 of 2011]

 

(6A) If no reservation has been made by a developer in terms of subsection (1)  and the body corporate has not yet been established in terms of section 2(1) of the Sectional Titles Schemes Management Act, the registrar may issue a certificate of real right of extension as contemplated in section 12(1)(e) on application by the developer accompanied by the sectional mortgage bond and the written consent of any bondholder and such of the documents contemplated in subsection (2) as are applicable.

[Section 25(6A) substituted by section 9(d) of the Schedule of Act No. 8 of 2011]

 

(6B) Upon compliance with subsection (6A) this Act shall apply with the necessary changes to such real right as if it had originally formed part of the application for the opening of the sectional title register and such certificate of real right shall be issued subject to any sectional mortgage bond against the land.

[Section 25(6B) inserted by section 18(c) of Act No. 44 of 1997]

 

(7) [Section 25(7) deleted by section 18(d) of Act No. 44 of 1997].

 

(8) The provisions of sections 5, 6 and 7 shall apply mutatis mutandis to the submission of a draft sectional plan of extension to the Surveyor-General in terms of this section and the approval thereof by him: Provided that the draft sectional plan of extension submitted to the Surveyor-General shall be accompanied by a revised schedule specifying the participation quota of each section in the building or buildings depicted on the sectional plan and the sectional plan of extension, calculated in accordance with the provisions of section 32 as if the plan of extension formed part of the sectional plan when it was registered, and the Surveyor-General shall file such revised schedule with the sectional plan in lieu of the schedule referred to in section 7(2)(b).

 

(9) A developer or his or her successor in title to a right reserved in terms of subsection (1), or the body corporate in terms of subsection (6), as the case may be, may, after approval of a sectional plan of extension by the Surveyor-General in terms of this section, apply to the registrar for the registration of such plan of extension and the inclusion of the additional sections and exclusive use areas, or the inclusion of exclusive use areas only, in the relevant sectional title register.

[Section 25(9) substituted by section 8(i) of Act No. 11 of 2010]

 

(10) An application under subsection (9) shall be accompanied by—
(a) two copies of the sectional plan of extension;

[Section 25(10)(a) substituted by section 15(e) of Act No. 63 of 1991]

(b) [Section 25(10)(b) deleted by section 18(e) of Act No. 44 of 1997];
(c) the certificate of real right by which the reservation in terms of subsection (1) or (6) is held, together with any sectional mortgage bond registered against the certificate of real right and the consent of the mortgagee to the substitution of the sections depicted on the sectional plan of extension and their undivided shares in the common property, as security in lieu of the real right held under the certificate of real right mortgaged under the bond;
(d) certificates of registered sectional title in the prescribed form in favour of the developer, his or her successor in title or the body corporate, as the case may be, in respect of each section and a certificate or certificates of real right in respect of the rights of exclusive use reflected on the plan of extension;

[Section 25(10)(d) substituted by section 8(c) of Act No. 33 of 2013]

(dA) any mortgage bond which may be affected by the right, together with the consent of the mortgagee to the registration of the extension of the scheme and the endorsement of such bond to the effect that it is attached to—
(i) each section shown on the sectional plan and its undivided share in the common property;
(ii) the certificate or certificates of real right in respect of a right of exclusive use as contemplated by subsection (10)(d) and section 27(1); and

[Section 25(10)(dA)(ii) substituted by section 8(d) of Act No. 33 of 2013]

(iii) if applicable, the certificate or certificates of real right in respect of the remainder of the right reserved in terms of subsection (1); and

[Section 25(10)(dA)(iii) substituted by section 8(d) of Act No. 33 of 2013]

(e) [Section 25(10)(e) deleted by section 15(f) of Act No. 63 of 1991]; and
(f) such other documents and particulars as may be prescribed.

 

(11) When the requirements of this section and of any other law have been complied with, the registrar shall—
(a) register the sectional plan of extension;
(b) extend the sectional title register to include the sections and exclusive use areas, as the case may be, depicted on the plan of extension;

[Section 25(11)(b) of section 8(l) of Act No. 11 of 2010]

(c) simultaneously with the registration of the sectional plan of extension issue to the developer, his or her successor in title or the body corporate, as the case may be, a certificate of registered sectional title in respect of each section depicted on the sectional plan of extension and its undivided share in the common property, and a certificate or certificates of real right in respect of rights of exclusive use, subject to any mortgage bond registered against the title deed of the right of extension, furnish the local authority concerned with a copy of such plan of extension and notify the Surveyor-General of the registration of such plan of extension, and thereupon the Surveyor-General shall amend the original sectional plan and the deeds office copy of the sectional plan to reflect such extension; and

[Section 25(11)(c) substituted by section 8(e) of Act No. 33 of 2013]

(d) make such entries in his or her records and endorsements on the certificates of registered sectional title and certificates of real right in respect of rights of exclusive use referred to in paragraph (c), any certificate of real right referred to in subsection (10)(c), and any sectional mortgage bond registered against the certificate of real right, as are necessary to give effect to this section.

[Section 25(11)(d) substituted by section 8(l) of Act No. 11 of 2010]

 

(12) Upon registration of a sectional plan of extension referred to in subsection (11)(a)—
(a) the owners of sections in the building or buildings in the scheme that is being extended, the mortgagees of sectional mortgage bonds and the holders of any real rights registered over such sections, shall be divested of rights registered over sections, shall be divested of their share or interest in the common property is vested in the developer, his successor in title or the body corporate, as the case may be, by the issue of the certificates of registered sectional title referred to in subsection (11)(c);
(b) a sectional mortgage bond whereby a real right held by a certificate of real right referred to in subsection (10)(c) is mortgaged, shall be deemed to be a sectional mortgage bond over the sections depicted on the sectional plan of extension and their undivided share in the common property and registered against the certificates of sectional title issued in terms of subsection (11)(c); and
(c) the sectional plan of extension shall be deemed to be incorporated in the sectional plan registered in terms of section 12(1)(a), and thereupon the provisions of section 13(1) and (2) shall apply mutatis mutandis.

 

(13) A developer or his or her successor in title who exercises a reserved right referred to in subsection (1), or a body corporate exercising the right referred to in subsection (6), shall be obliged to erect and divide the building or buildings into sections and to delineate areas of the common property subject to rights of exclusive use strictly in accordance with the documents referred to in subsection (2), due regard being had to changed circumstances which would make strict compliance impracticable, and an owner of a unit in the scheme who is prejudiced by his or her failure to comply in this manner, may apply to the Court, whereupon the Court may order proper compliance with the terms of the reservation, or grant such other relief, including damages, as the Court may deem fit.

[Section 25(13) substituted by section 8(m) of Act No. 11 of 2010]

 

(14) In all cases where a developer or a body corporate has a real right to extend a scheme as contemplated in this section, such right shall be disclosed in the deed of alienation to every purchaser of a section in the scheme concerned.

 

(15)
(a) A deed of alienation in which a real right has not been disclosed as contemplated in subsection (14), shall be voidable at the option of the purchaser.
(b) After notice by any such purchaser to the seller that he or she annuls the alienation, the alienation shall be void, and thereupon the provisions of section 10(5) shall apply  with the necessary changes.

[Section 25(15)(b) substituted by section 6(d) of Act No. 29 of 2003]

 

[Section 25 substituted by section 8(a) of Act No. 11 of 2010]