Section 24(6)(d) of the Sectional Titles Act reads as follows:
"(6) An application to the registrar for the registration of a sectional plan of extension of a section, shall be accompanied by -
(d) any sectional mortgage bond to which the section may be subject, together with a certificate by a conveyancer stating that there is not a deviation of more than five per cent in the participation quota of a section or sections as a result of the extension, or if there is a deviation of more than five per cent, that the mortgagee of each section in the scheme has consented to the registration of the sectional plan of extension of a section."
Registrars' Conference Resolution 31 of 2002 (RCB 31/2002) reads:
"How should one interpret the "deviation of more than five per cent" referred to in s 24(6)(d)? Is it to be construed as a deviation of five per cent of the section being extended or five per cent of the participation quotas of the other sections in the scheme?
The 5% is calculated on the section or sections to be extended but the establishment of the deviation is the responsibility of the conveyancer."
This article is fascinating because at its core are the consequences of the answer to this simple question: "Must the deviation of more than 5% be construed as a deviation of 5% of the section being extended or 5% of the participation quotas of the other sections in the scheme ?
By means of practical examples, the writer shows and argues why the second alternative is the better choice.