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Sectional title encroachments

17 February 2011

When erecting and completing buildings on land, encroachments of such buildings onto or over adjacent land occasionally transpires. For the sectional title practitioner and deeds examiner alike, encroachments in said perspective bear the potential of developing into an irksome complexity. Profound insight of an encroachment's nature is proposed as point of departure when unravelling the potential complexity of encroachments in sectional title developments. Principally the nature and characteristics of the encroachment at issue will dictate the approach to be followed by the sectional title practitioner.

Primarily two types of encroachments are identifiable, namely (a) encroachment of buildings erected on adjacent land, which buildings encroach onto the land to be comprised of the sectional title scheme (hereinafter referred to as the sectional title property):


And (b) encroachment of buildings erected on the sectional title property, which buildings encroach onto adjacent land:


From a practical perspective it should be borne in mind that encroachments of buildings include the physical encroachment of the building, as well as the overhang of a balcony or roof above ground level, and the encroachment of a basement below surface level, for example.

Upon preparation of the draft sectional title plan for a sectional title development, encroachments must be depicted on the first sheet (information sheet) of the plan. Prescribed Form AC to the Regulations of the Sectional Titles Act 95 of 1986 (hereinafter referred to as "The Act") provides for a caveat in respect of encroachments on the land. The said prescribed form provides for inclusion of the caveat, irrespective of whether there are encroachments or not. The caveat should be amplified with a "No" or "Nil" in cases where there are no encroachments. In cases where encroachments are applicable, the said caveat should be amplified with cross-reference to sheet 2 of the plan, i.e. the block plan. The encroachments will be depicted on said sheet 2 (block plan) of the plan, if such encroachments exist.

The ostensible complexity in the understanding of encroachments is possibly partly derived from the difference in practice pertaining to the revealing of encroachments on sectional plans.

The reference in the caveat "encroachments on the land" (my underlining) creates the impression that encroachments should only be noted and depicted on the sectional plan when buildings erected on adjacent land encroach onto the sectional title property, since the latter is the "land" affected by the sectional plan. It could, therefore, be interpreted that in instances where buildings from land other than the sectional title property encroach onto the sectional title property, the caveat on sheet 1 (information sheet) will bear reference to sheet 2 (block plan) of the plan. The encroachment in question should then be depicted on sheet 2. By implication this interpretation dictates that encroachments from the sectional title property onto adjacent land should not be covered by the caveat on sheet 1. However, if there are such encroachments, they will still be depicted on sheet 2 of the plan. Following this practice, it is thus possible that a sectional plan might bear a caveat with a "no" or "nil" reference on sheet 1, whilst encroachments might be depicted on sheet 2. Strictly, in accordance with the letter of the legislation, no objection can be raised against this interpretation and practice.

Most probably, since the said practice quite often wreaks havoc in the layman's interpretation of information on a sectional plan, another practice has been established. It has become parallel practice to amplify the caveat with a "no" or "nil" reference only in instances where no encroachments are applicable to the sectional title scheme. Thus, if there are any encroachments, whether buildings from adjacent land encroach onto the sectional title property or the buildings from the sectional title property encroach onto adjacent land, the caveat will be a reference to sheet 2. This practice is based on the school of thought that both types of encroachments must in any event be depicted on sheet 2.

The following sectional plan is an almost inimitable case where encroachments are indicated and depicted on sheet 2 (block plan), which buildings encroach onto the sectional title property, as well as onto the adjacent land:


In view of the different practices that prevail, sectional title practitioners and deeds examiners are implored not to rely solely on the caveat on sheet I in determining whether encroachments are involved or not. Sheet 2 (block plan) should be examined cautiously, regardless of the information contained on sheet 1.

More often than not, in cases where buildings encroach on surface level, the appropriate authorities will require that the land be consolidated, or at least a notarial tie agreement be registered, rather than permitting the encroachment as such and the subsequent registration of servitude of encroachment. In such instances the process might entail possible subdivision of the affected land combined with the subsequent consolidation. It might even include the closure of a street or public place, depending on the type of affected land and the nature of the encroachment. In said instances it stands to reason that the actual encroachment of the building will not be reflected as an encroachment on the sectional plan, since it has been solved by an alternative method and procedure.

Interesting to note is that buildings that have been erected on the sectional title property, encroaching onto adjacent land, might in reality contain parts of common property, sections, or exclusive use areas. However, such encroaching parts will not be depicted and reflected as part of the common property, sections, or exclusive use areas on the sectional plan. It will be depicted and reflected as encroachments. Therefore, the encroaching part will also not form part of the total area/extent of the affected section or exclusive use area. The area/extent of the section or exclusive use area will be calculated separately from that of the encroachment indicated on the block plan.

One might well ponder the importance of encroachments for the sectional title practitioner and deeds examiner. The direct consequence is that encroachments constitute the infringement of the ownership of the servient land (the land onto which the building encroaches), affording certain benefits and rights to the dominant tenement. In order to legally regulate the said interaction and legal relationship, a servitude of encroachment must be Registered.

How and when must such servitude be registered? This matter has already been referred to the annual conference of registrars of deeds in 2005, and included in RCR 54 of 2005, namely: "The encroachment must be registered before the scheme is opened or simultaneously with the registration of the sectional title scheme." The registration of the encroachment servitude will be effected by means of bilateral notarial deed of servitude, entered into between the registered owners of the affected properties. As the sectional title register is not yet opened, the owner of the land to be comprised of the sectional title scheme (the developer) will be one of the parties to the agreement. However, the agreement will be in respect of land still registered in the land register "conventional properties" since the servitude has to be registered prior to the opening of the sectional title register. If not registered separately from the application for the registration of the sectional plan and opening of the sectional title register, the notarial deed of servitude ought to be linked in the batch prior to the said application. The title deeds of the properties involved must be lodged together with all other documentation relevant to the registration of a praedial servitude. The deeds examiner must endorse the affected title deeds in respect of the praedial servitude of encroachment. The section 11(3)(b) schedule of conditions should include the servitude as one of the conditions applicable to the land comprised of the sectional title scheme.

The conference of registrars of deeds was also approached with the apt question: "What if the sectional title register is already opened and encroachments are indicated and depicted on a plan of extension to be registered in terms of section 25 of the Sectional Titles Act 95 of 1986?" In 2006, vide RCR 55 of 2006 it was resolved that: "The right of encroachment should be registered between the body corporate, if established, if not, the developer and neighbouring owner, together with the consent of bondholders of neighbouring land with the registration of the plan of extension. Section 75(3) ofAct47of 1937 applies." If the body corporate is established and the neighbouring buildings encroach onto the sectional title property, the latter will be the servient tenement. Therefore, in accordance with the provisions of section 29(1) of the Act, the servitude will burden the common property of the sectional title scheme and a special resolution will be required for the body corporate to engage in affording the servitude. The said special resolution will have to be submitted to the notary public concerned, who will retain said resolution in his/her protocol with the protocol copy of the notarial deed of servitude. The notarial deed will disclose the fact that the resolution has been obtained and that it is filed in the said protocol. It should be noted that the said section 75(3) of the Deeds Registries Act 47 of 1937 will also apply in the instance where the servitude is registered prior to the opening of the sectional title register (as discussed above).

Holistically seen, encroachments on a sectional plan need not to pose trepidation to sectional title practitioners or deeds examiners. All stakeholders merely need to focus on the essence: clear understanding of basic concepts and accurate reading and interpretation of the sectional plan.

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