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Encroachment of s25 rights

20 July 2006

Developers must take care when extending a scheme in terms of Section 25 of the Sectional Titles Act 95/1986 ("the Act") not to encroach upon the rights of either the common property or the right of extension held by another party.

Where a section has been built outside of the area demarcated by the section 25(4)(b) plan, the developer has three feasible options to resolve the predicament:

Firstly, he can demolish the structure and rebuild it within the boundaries of the area depicted by the Section 25(4)(b) plan. This is not necessarily a popular choice but he has two further options:

The options left to him depend on whose right he has encroached upon. Where the encroachment is on a section 25 right held by a third party, the encroaching developer will have to acquire the right to the area of encroachment from such third party. The Act does not permit the Registrar to register a servitude of encroachment over a section 25 right of extension; therefore the acquisition of the encroached area must be registered by means of a notarial deed of cession. This must be accompanied by a diagram in terms of section 25(4)(b) for the area ceded. As this is an acquisition of a right, there will be transfer duty implications.

When the developer registers the conversion of his right to extend the scheme to sectional title ownership in terms of section 25(9), both titles to his section 25 right must be lodged with the deeds registry. The conversion of the right will be registered against both of these titles. Where the right is extinguished by exhaustion of the right, the developer must apply for the noting of the lapsing of this right in terms of section 68(1) of the Deeds Registries Act 47/1937.

The developer will be entitled to reserve rights of exclusive use for his own account for the entire area depicted by the section 25(4)(b) plan, even if such exclusive use area is not depicted by the section 25(2)(a)+(b) architect's plan.

The provisions of section 27A and 27(1A) only apply to areas outside the area depicted by the section 25(4)(b) plan. The initial section 25 reservation gives the developer a statutory right to reserve rights of exclusive use within the section 25(4)(b) area. As for deviations from the section 25(2)(a)+(b) architects plan, the court held in Knoetze v Saddlewood CC [2001] 1 All SA 42 (SE) that section 25(13) is primarily created to favour the developer, and provides the developer a great deal of leeway when it comes to building the section.

The wording of the Act is very wide as to the requirements that necessitate variation. "Impracticable" and "changed circumstances" are very wide concepts. An owner who approaches the court to enforce strict compliance with the section 25(2)(a)+(b) plans will have to have a very strong case to prove prejudice.

The third option is the most arduous one. This is where the developer has encroached on the common property. In this case the provisions of section 25(6) will have to be used.

Developers are therefore strongly advised to build their sections within the area demarcated by the section 25(4)(b) plan.

Warren Hamer


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