Practitioners are often confronted with the question pertaining to the date from which an owner of a section, who has extended the floor area of a section, will be liable for the increase in levies payable to the Body Corporate.
In terms of s 32(1) of the Sectional Titles Act 95 of 1986 (the Act)
‘the participation quota of a section shall be a percentage expressed to four decimal places, and arrived at by dividing the floor area, correct to the nearest square metre, of the section by the floor area, correct to the nearest square metre, of the section by the floor area of all the sections in the building or buildings comprised in the scheme’.
The relevant floor areas are indicated on the sectional plan prepared by a qualified architect or land surveyor in terms of section 5 of the Act, and the corresponding participation quotas are required to be indicated on a schedule annexed to the plan. After being approved by the surveyor general, sectional plans are registered by the registrar of deeds when the sectional title register is opened. A sectional title unit owner’s real rights of ownership are vested by registration in the sectional title register. The participation quota attaches to the owner’s section, and indeed also those attaching to each of the other sections in the scheme. If the registered participation quotas in respect of a Scheme requires adjustment because of the subsequent extension of some of the sections, new measurements and the registration of amended plans known as ‘sectional plans of extension’ would have to be undertaken to achieve that. Any consequential adjustment to the originally determined participation quotas would become effective only upon registration of the sectional plans of extension.
In a recent decision of Trustees for the Time Being of the Avenues Body Corporate v Shmaryahu and Another (A31/2018) [2018] ZAWCHC 54; 2018 (4) SA 566 (WCC) (10 May 2018) the the position was confirmed in that the increased levies by an owner of a section will only become due and payable as at date of registration of the amended sectional plan of extension.
Nothing, however, prevents the Body Corporate from entering into an agreement with the owner of the affected section to pay an increased levy prior to the date of registration of the plan of extension.
For any queries please contact our property law division at the details below:
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
