Sectional Title Schemes: Deviations from section 25 plans finally settled
Deviation from the section 25(2)(a) and (b) plans when exercising a real right of extension has been soaked in debate since their introduction as a potential “plot-and-plan” option in sectional title developments. Alan West analysed the recent unreported case of Hartenbos Woonwapark CC v Registrar of Deeds and others and argues that the issue has finally been put to rest.
In the initial case of Dolphin Whisper Trading 10 (PTY) LTD v The Registrar of Deeds and another (20645/08) [ZAWCHC] the Court found that if there is not sufficient evidence of changed circumstances, the real right of extension has to be exercised strictly in accordance with the section 25(2)(a) and (b) plans. The consequence of this decision was that developers were compelled to approach the Court when any deviation from the section 25(2) plans occurred.
The subsequent judgement in Roseparkadmin CC and others v Registrar of Deeds (WCHC) Case No 5522 allowed a developer to deviate from the section 25 (2)plans without a Court’s sanction where there were changed circumstances. Owners who were prejudiced may then apply to Court for relief.
In order to deal with the two conflicting judgments the Registrars of Deeds at their annual conference resolved to expand on the Roseparkadmin decision and to usurp the duty to ensure that the exercising of the real right of extension is within the physical boundaries of the reserved right (RCR12 of 2011). The Chief Registrar furthermore issued a directive providing that proof in the form of a certificate from a surveyor or architect must be submitted that the real right is exercised within the “foot print” on which the reservation took place (CRC 2 of 2012).
In the unreported case of Hartenbos Woonwapark CC v Registrar of Deeds and others, the court held as follows:
“I cannot agree that the developer’s failure to divide the sections strictly according the site development plan due to the changed circumstances amounts to non-compliance with the provisions of the Act. Although the Act requires the sections to be divided according the site development plan, the Act does envisage that there may be situations where it is not possible to divide the sections strictly according to the site development plan due to “changed circumstances”. The Act, in those instances, provides remedies to the owners of the units who may be affected by the deviation to approach the court.
I agree with the applicant’s submission that section 25(13) of the Act relates to situations where an owner of a unit in a scheme takes issue with a deviation, and approaches the court for an order obliging the developer to properly comply with the terms of the reservation or any other relief which the court may deem fit, including an award for damages. It is clear from reading of section 25(13) of the Act that this section is not concerned with the power of the Registrar of Deeds to refuse to register the transfer nor the court’s approval of the transfer of a unit which is subject”
Allan West concludes from the judgment that where the real right is clearly defined on a diagram, the exercising of the real right may not exceed the boundaries or encroach on other common property in the scheme. However, where no diagram exists, but merely a sketch plan, it is not incumbent on the Registrar of Deeds to police the foot print. Read his views here.