No right to cede

23 August 2018

If you refer to the Sectional Title Act No 95 of 1986 Act, Regulation 28 (3) a, b and c, it clearly reads that the right to an Exclusive Use Area is transferred to a new owner, not ceded, and that the Registrar must make the necessary endorsements. I have never seen such an endorsement on any 25(2)f certificate, or schedule of conditions or Annexure A.

Regulation 28 also makes it clear that three types of registered EUA's exist in a Sectional title - 25(2)f, 27(3) and 60(3). Yet all the articles I have ever read refer to only two types -27(3) and 60(3).

We are not talking about 27A - these are not registered EUA's.

I have seen an endorsement of a cession on a real right certificate, but these transactions always end in tears because the courts cancel these cessions; they are invalid if not done between actual members and only while both parties is members. Body corporate consent is only required where an owner wishes to cancel such right (bilateral), other than that is only the levy clearance certificate that is required before such a cession of real right between owners can take place.

Maryke suggests that when a real right that belongs to a section is not ceded simultaneously with the transfer of the section to a new owner, the right vests in the body corporate. [See the article Section 27]

I disagree.

When the section is transferred, the registrar must endorse the "title deed" to the fact that the real right EUA is also transferred, meaning the 25(2)f certificate, the Sectional Plan Conditions or the Annexure A must be endorsed in accordance to Regulation 28. When an owner of a section is entitled to any real right as the holder of a certificate of registered sectional title, he himself or his conveyancer must appear in front of the Registrar and apply for his own certificate of real right. This is how personal right certificates is obtained-(unilateral).

Trustees should not be given the authority to cede already registered EUAs to owners, because it is guaranteed that they will not register the cession, so that it reverts to the body corporate where they can control it themselves and in this way "steal" it from the rightful owner, just like it happened at Inyoni Rocks Cabanas.

Whose mistake is that? The conveyancer/notary or the Registrar? Who must see to it that the endorsement takes place?

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