There is no statutory or regulatory obligation on the Surveyors General or registrars of deeds to disallow the duplication of names assigned to a sectional title scheme on approval of the sectional plans or on the opening of the sectional title register.
This oversight by the legislator has given rise to numerous instances where objection was made to the duplication of a name, more specifically in instances where a name is registered with CIPRO/Commission as a trademark or is patented, and the matter having to be resolved in a court of law.
It would appear as if the Surveyor General in Kwazulu-Natal does not allow the duplication of a scheme name in the same local authority area. This practice still does not solve the problem of names registered as trademarks or which are patented. Duplications in other local authority areas could still result in lengthy court disputes. Practice has shown that Sheriffs more often than not attach units in a scheme containing the same name, not aware of the fact that the judgment is relevant to a unit in another scheme.
Research has shown that in numerous instances, certain bodies corporate, in view of changed circumstances, have changed the name allocated to the scheme as same was no longer acceptable to most of the members. Since no enabling legislation exists to change the name of the scheme, the body corporate merely assigns a new name to the scheme which then appears on signage, correspondence, etc. This causes major confusion to all and sundry and should be frowned upon and not be allowed.
Should a court be approached to change the name of a sectional title scheme, the Surveyor General should be instructed to amend the sectional plans and in turn notify the registrar of deeds concerned to note a caveat against the scheme. However, this is a costly and drawn-out procedure (see in this regard RCR 68 of 2008).
It is submitted that the Sectional Titles Act 95 of 1986, or regulations promulgated there under should cater for the change of name of a sectional title scheme name, as well as to prevent Surveyors General from registering sectional plans duplicating names, specifically names reserved as trademarks.
The matter, however, was referred to the Sectional Title Regulation Board meeting, however it was held that the uniqueness of a sectional title scheme lies in its registration number, and not its name.
The matter was also referred to the Registrars’ Annual Conference, but the same resolution as was made by the Board was taken (see RCR 82 of 2011).
Conclusion
Should any affected body corporate wish to change the name of a scheme, the matter must be referred to Court.
Allen West
Property Law Consultant
HANNES GOUWS AND PARTNERS INC.
Attorneys, Notaries & Conveyancers
Tel: 012 321 1008
Cell 078 7655928
E-mail: allen@hannesgouws.co.za
Author of The Practitioners Guide to Conveyancing and Notarial Practice 3rd Edition
