Allen West Conveyancing Update

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 as 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 the majority of the members. In view of the fact that 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. Do not hesitate to contact us should you require more information.

Allen West
TONKIN CLACEY PRETORIA 
012 346 1278

1 COMMENT

  1. Comment posted on behalf of John Christie of J Leslie Smith and Co.

    I agree fully with what Allen has said.
    When the 1971 Act was in operation, the procedure in PMB was that the land surveyor applied to the SGO for the reservation of a name for the scheme – which the SGO did – unless there was already a scheme with that name – in which event the land surveyor or developer had to select a different name.
    So there was no duplication of scheme names permitted at that stage.
    That practice was eventually abolished when someone objected on the basis that there was no such prohibition in the Act.
    Someone always spoils the party.

    A further problem which needs to be highlighted is the way in which schemes and extensions are numbered.
    The Act requires the Registrar to assign a unique number to every scheme – and so what happens with a scheme with two extensions, for example, is that the first phase in numbered, say, SS 123/2016, the first extension as SS 567/2017 and the second extension as SS 678/2018 – all part of the same scheme!
    This causes immense confusion, even with the deeds registry data base, and it is not uncommon to do a scheme search and to find the wrong extensions files under the wrong scheme – not to mention ball the confusion out there amongst the general public when it comes to identifying schemes properly.
    A much better solution would have been to number the scheme, and all of its extensions, as: First phase: SS123/2016, second phase as SS123/2016(2), and third phase as SS123/2016(3). These are all unique numbers, and this would have avoided much of the confusion which exists with everybody.

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