Section 48 of the Sectional Titles Act No 95 of 1986 (the Act) provides for the destruction of building(s) where the buildings in a scheme are deemed to be destroyed within the ambit of section 48(1)(a) to (c). Subsection (8) provides that where two or more buildings are comprised in a scheme, and only one or part of one of the said buildings is damaged or destroyed, the provisions of section 48 shall apply mutatis mutandis, as if the said buildings were only one building, and part of such building has been damaged or destroyed.
Regulation 31(2) further provides for the lodgement of a schedule, in terms of section 5(3)g), i.e. the participation quota (PQ) schedule, which shall exclude reference to any section which has been destroyed, as well as the affected title of the owner which must be submitted for “disposal".
Section 48 and regulation 31 provide for the destruction of a building or part of a building, and for the disposal of the affected section, i.e. the whole section, but it previously did not make provision for the destruction of a part of a section.
Before the amendment of regulation 31
The matter pertaining to the partial destruction of a section was deliberated on and at the 2012 Registrars' Conference where it was resolved that the provisions of section 22 (if applicable) read with sections 48 and 49 of the Act must be applied (RCR 77 of 2012). However, this resolution only addresses the partial destruction of a section which is destroyed within the meaning of section 48(1)b) and (c). In this case the section must be subdivided in terms of section 22 and the part that is deemed to be destroyed will then be described as a whole section, and section 48 can be applied for the cancellation thereof. It does not deal with a partial destruction of a section in terms of section 48(1)a), i.e. when it is physically destroyed. The reason for this is that the Act prescribes that the boundaries of a section must be physically defined and that the architect or land surveyor must provide a certificate stating that the boundaries of the sections and common property are physically defined, as contemplated in section 5(4) and (5) of the Act (see also regulation 6( b)). An architect or land surveyor will therefore not be able to prepare a sub-divisional plan, or to provide such a certificate in respect of a section where the section no longer exists, i.e. a section that is physically destroyed.
An alternative is to deem the whole section to be destroyed and apply section 48, read with regulation 31. This may not always be the ideal or practical manner to deal with this situation, specifically where the part of the section which is destroyed is a balcony, terrace or a garage.
After the amendment of regulation 31
The amended regulation 31(2), to be effective from 15 April 2013, reads as follows:
2) The notification to the registrar pursuant to subregulation (1) shall be accompanied by:
a) a sectional plan which shall exclude reference to any section or part of a section which has been destroyed; and
(b) the affected title of the owner of the unit or holder of any real rights together with the consent of the holder of any mortgage bond or holder of any real rights for disposal thereof.”
It will no longer be peremptory to subdivide the section, alternatively, to “destroy" the whole section. The amended regulation provides for a sectional plan to be lodged, which shall exclude that part of the section that is destroyed in terms of section 48(1)(a), (b) or (c). The buildings to be surveyed for purposes of preparing the plans, will be those building(s) that are still intact and not that part that is deemed to be destroyed. The PQ schedule will also exclude that part of the section that is destroyed, resulting in a smaller extent and participation quota.
The plans that must be lodged with the notification to the registrar of deeds will be the following:
The title deed of the affected Section, and other deeds referred to in regulation 31(2)b), will be endorsed to reflect the destruction of a part of the section, and the amended extent of the Section.
The regulations do not provide for the numbering of the plans in the deeds office with a new SS-number. The plans will therefore be filed on the main file of the sectional title register. The notification will attract an office fee, in terms of Item 1(d) of the Schedule of Fees of Office to the Regulations to the Deeds Registries Act No.47 of 1937.
A question begging an answer is which plans must be lodged where a section consists of two floors and the top floor is deemed to be destroyed. It will not affect the block plan and therefore it will not be necessary to lodge it. The floor plan for that section will be blank because that part of the section that is deemed to be destroyed must be excluded. It is submitted that the information sheet must be lodged together with the PQ schedule. But how will the floor plan, that is filed in the deeds office, be amended to reflect the change? It is proposed that the registrar of deeds must inform the surveyor general, in terms of regulation 31(4), and the surveyor general will in turn make the required amendments and endorsements on the sectional plan and the deed registry copy thereof (see regulation 31(5). The deeds office copy of the plans will thus reflect the amendment once the surveyor general has endorsed the plans.
How does this amendment affect Registrars' Conference Resolution 77 of 2012? The necessity for subdividing the section has been ruled out by the amendment of regulation 31(2). The option to subdivide a section may still be exercised where a section is not physically destroyed. However, regulation 31 (2) now prescribes that the part of the section not so destroyed must be excluded from the plan. The new destroyed section "created" with the section 22 subdivision will, in any case, have to be omitted from the plan. It therefore appears to be an exercise in futility to execute the option of subdividing the section.