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Sectional Title owners often ask for information regarding the procedure for extending their section. Recent far reaching amendments have been made to the Sectional Title Act in regard to the above. These guidelines include the latest amendments.
The procedure for extending a section is governed by Section 24 of the Sectional Title Act No. 95 of 1986, as amended, (the Act). This section states that if an owner proposes to extend the boundaries or floor area of his or her section then such owner shall with the approval of the body corporate authorized by a special resolution of its members have a land surveyor prepare a sectional plan of extension and have it approved by the Surveyor general.

PROCEDURE
We recommend that the following steps be taken:-

Approach the trustees to ascertain if there are any scheme rules regarding special requirements as to the design, materials to be used and aesthetics of the extension.

Discuss the matter with the Local Authority as to their requirements and cost for the approval of the building plans of the extension.

Consult a land surveyor regarding the preparation of the sectional plan of extension and the costs involved. The land surveyor may want to come on site to discuss and quote, especially if any exclusive use areas are affected by the extension.

Obtain from a conveyancer a quote of the costs of registering the sectional plan of extension in the Deeds Office.

Approach the body corporate for authorization of the extension by way of the body corporate passing a special resolution.The special resolution should make clear provision for authorizing the owner of a specific section :
to extend it in terms of approved building plans;to engage a land surveyor to prepare the relevant sectional plan of extension when the extension has been built;to register the approved sectional plans in the Deeds Office by engaging a conveyancer to do so,to cancel any encroached on exclusive use area and to impose any new exclusive use area if applicable andto do the above at the owner's cost.We have found in some cases when instructed to attend to the transfer of a section that the owner has physically done an extension without attending to the legal requirements. This omission can cause considerable delays and frustration in the transfer. So it is important that owners attend to all the legalities. There is a duty on the trustees to ensure that owners comply with the provisions of the section.

There are two ways of obtaining the special resolution -
The first is by way of a proposal for a special resolution without calling a meeting which proposal the owner submits to the other owners on an individual basis and obtains the written consent of at least 75% of all owners reckoned in both number and value. (The "round robin" approach)The second is by way of a special resolution being taken at a general meeting of owners. Proper notice must be given calling the meeting and the notice must set out the proposed resolution and be delivered by hand or sent by prepaid registered post at least 30 days before the meeting (unless the Management Rules provide for a shorter period). It must be passed by a majority of not less than three-fourths of the votes reckoned in both number and value of all owners who are personally present or represented at the meeting by proxy.

Note that in the -
first case the special resolution must be passed by the written consent of at least 75% of all owners of the scheme.in the second case it must be passed by three-fourths of owners or proxies who are actually present.Usually the first "round robin" approach is the easiest but may not be practical in large schemes.

When the resolution has been obtained and the building plans are approved, build the alterations. Thereafter instruct the land survey to do his measurements. He will prepare the draft sectional plan of extension and have such plan approved by the Surveyor General. When the plan is so approved instruct the conveyancer to do the appropriate application to the Deeds Office to have the plan of extension incorporated into the scheme.

THE ISSUE OF EXCLUSIVE USE AREAS.
The above procedure applies whether the extension is done
over common property oron or over an exclusive use area (EUA)If the extension is built onto common property then there is no problem as the body corporate has already consented thereto by passing the special resolution.
However if the extension is built over or on to an EUA then the owner must ascertain whether that EUA was created -
by being delineated on the sectional plan when the scheme was opened (or on subsequent plans in a phase developments)or such EUA was created by way of the Rules.If created by the Rules, then there is no special procedure.
However, if created by being delineated on a sectional plan, then the following action has to be taken
the existing EUA has to be cancelled by way of a notarial deed of cancellation entered into between the owner and the Body Corporate.The land surveyor preparing the sectional plans will be aware of this and will demarcate on the plan of extension the new smaller EUA.A notarial deed for the new EUA will then be ceded by the body corporate to the owner at the same time as when the sectional plan of extension is registered in the Deeds Office. This must be done because another EUA cannot be laid over an existing EUA. It is therefore advisable if this situation applies to ensure that authority for this is given in the special resolution to be passed by the body corporate as mentioned above.THE ISSUE OF THE SIZE OF THE EXTENSION
A recent amendment to the Act has clarified a former contentious issue regarding whether a deviation of more than 10 per cent of the participation quote applied to the section being extended or to any section in the scheme. The amendment settled the uncertainty by saying that it applies only to the section being extended.
It is necessary to apply one or other of the following two procedures:-
Where the deviation is less than 10 per cent -
Section 24(6)(d)(i) of the Act states that a land surveyor or architect must certify stating that there is not a deviation of more than 10 per cent in the participation quota of the relevant section as a result of the extension. Also if the section is bonded then the mortgage bond and the mortgagee's consent to the extension must be lodged with the application to register the extension in the Deeds Office.
If the section is not bonded the above certificate by the land surveyor or architect must still be lodged.
Where the deviation is more than 10 per cent -
Section 24(b)(d)(ii) states that if there is a deviation of more than 10 per cent, a certificate by a conveyancer stating that the mortgagee of each section in the scheme has consented to the registration of the sectional plan of extension of that section.
The section requires the conveyancer (for the owner) if there is a deviation of more than 10 per cent as a result of the extension, to send a notice by registered post to each mortgagee (or where a mortgagee is a financial institution to its headquarters), giving details of-
the mortgage bond;the mortgagor and the reference number of the mortgage loan (if any);the proposed extension in relation to its size and location; andthe impact on the security of such mortgagee as to the diminution of the participation quota allocated to the mortgaged unit.If the mortgagee does not respond to the notice within 30 days of the date of the posting of the notice by registered post, it shall be deemed that the mortgagee does not have any objection to the proposed extension and that the mortgagee consents thereto.
The conveyancer then lodges with the application in the Deeds Office a certificate that no mortgagee has objected to the extension.
The consents of the mortgagees are informal by way of a letter of consent.
We have never known a mortgagee to object to an extension and it is very unlikely because an extension is always in conformity with the schemes requirements, approved building plans and will generally add to the value and marketability of the scheme as a wholeFURTHER REQUIREMENTS
A transfer duty receipt based on a nominal value of usually R100, 00 must be lodged by the conveyancer with the application form to register the sectional plan of extension together with a rates clearance certificate.

Bruce Forrest

Meumann White

Tel: 031 202 9245Fax: 086 685 1760

Email: bforrest @ meumannwhite.co.za

Web: www.meumannwhite.co.za