Exclusive Use Areas in Sectional Title Schemes: Who Holds Them, Who Pays, and Where Disputes Start

An owner emails the trustees on a Sunday evening. She has been parking in bay 14 since 2014, the previous owner told her it came with the flat, and this morning somebody else parked there and would not move. She wants it sorted out by Monday.

This is one of the most common disputes in South African community schemes, and it is almost never really about parking. It is about whether anybody can prove who holds the right to that bay, on what basis, and what the scheme has been charging for it. In many schemes nobody can prove it, because the arrangement was made by a trustee a decade ago and was never created in a way the law recognises.

Exclusive use areas touch three things trustees answer for: the register of who holds what, the levy roll, and the maintenance budget.

What an exclusive use area actually is

An exclusive use area is a part of the common property set aside for the use of one or more owners: gardens, parking bays, garages, patios, balconies, store rooms and courtyards are the usual candidates.

The key point is in the words "common property". The area does not belong to the owner. It stays common property owned collectively by all owners in undivided shares, and the holder gets an exclusive right to use it. That is why the body corporate still has obligations towards it, and why an owner cannot treat it as an extension of their section, however it feels after fifteen years of paying extra for the garden.

There are two kinds, and the difference is not academic

South African law gives schemes two quite different ways to confer exclusive use, and trustees who do not know which kind they have will eventually give an owner the wrong answer.

Registered exclusive use areas are created under section 27 of the Sectional Titles Act 95 of 1986. The area is delineated on the sectional plan and the right is ceded to an owner by notarial deed registered in the Deeds Office. A right created this way is treated as a real right in immovable property, can be mortgaged, and lives in the Deeds Office rather than only in the scheme's paperwork.

Rule-based exclusive use areas are created under section 10(7) of the Sectional Titles Schemes Management Act 8 of 2011, by making management or conduct rules that confer rights of exclusive use and enjoyment of parts of the common property on members. Section 10(8) requires those rules to include a layout plan drawn to scale, showing each part numbered and the purpose it may be used for, plus a schedule allocating each part to a particular owner. No certificate of real right is issued, and the right cannot be registered, mortgaged or burdened with a registered servitude.

Rule-based areas are cheaper and faster, which is why most schemes use them for parking bays. They are also weaker, and they live or die by the quality of the rules and the schedule. If the layout plan and schedule do not exist, or do not match the ground, no trustee resolution fixes it after the fact.

How each one is created, in practice

For a registered area in a scheme already running, the body corporate needs a unanimous resolution before it can ask for the area to be delineated and ceded to a particular owner. A land surveyor or architect applies to the Surveyor General to delineate it on the sectional plan, and the right is then ceded by notarial deed. Cancelling a registered right also runs through a notarial deed, which the STSMA allows on a special resolution.

For a rule-based area, the route is a rule amendment: management rules by unanimous resolution, conduct rules by special resolution. Either way the amendment must be lodged with the Chief Ombud at the Community Schemes Ombud Service, who may only approve it if satisfied the change is reasonable and appropriate to the scheme. It takes effect when that certificate is issued, not when the owners vote.

That last point catches schemes out regularly. A general meeting that passes a rule creating twenty parking bays has not created anything yet, and trustees who start billing before the certificate is issued are charging for a right that does not exist.

Who maintains an exclusive use area, and who pays for it

This is where trustees and owners talk past each other, because the duty to maintain and the duty to pay sit with different parties.

The owner keeps it clean and neat. The STSMA requires an owner to keep an exclusive use area in a clean and neat condition, to allow authorised entry on reasonable notice, not to use it in a way that causes a nuisance, and not to use it for a purpose other than the one shown on the sectional plan unless every owner consents in writing. An owner who turns a store room into a workshop is on the wrong side of that last duty.

The body corporate maintains the common property. The scheme's obligation to keep all common property in a good and serviceable state of repair does not stop at the boundary of an exclusive use area. Structural repairs, the garage roof, the paving, the retaining wall behind the lawn: that work sits with the body corporate, not the holder.

The holder pays for it. The STSMA requires owners entitled to exclusive use of part of the common property to make an additional contribution covering the rates and taxes, insurance and maintenance attributable to that part, unless the rules make those costs the owner's own. The body corporate arranges the work and the holder funds it, as a line on the levy statement separate from the ordinary participation quota contribution.

Exclusive use contributions must therefore be budgeted and raised like any other contribution, which means they belong in the budget the members approve, not in an informal side arrangement. Insurance works the same way: the prescribed management rules require the scheme's policy to specify a replacement value for each unit and each exclusive use area.

There is one point trustees regularly get wrong here. The prescribed management rule that lets a body corporate step in after written demand, do the work itself and recover the reasonable cost applies to a member's failure to repair and maintain a section. It does not extend to an exclusive use area. So where an owner lets an exclusive use garden go to ruin, the scheme has no self-help route of that kind. It has the statutory duty itself, its own conduct rules, and an application to CSOS. Worth knowing before a trustee writes a letter threatening to send in a gardener and invoice the owner.

When an owner sells, or stops being a member

A registered exclusive use right is transferred by notarial deed of cession, and it can only move to the owner of another section in the same scheme. It cannot be sold to the public.

Where an owner ceases to be a member and an exclusive use right is still registered in their name, that right vests in the body corporate, free of any mortgage bond over it. Unallocated rights sit with the body corporate too, to be dealt with in terms of the legislation rather than left floating.

For rule-based areas the schedule attached to the rules is the record, and a sale means updating it through the proper rule amendment process. Schemes that treat the schedule as a spreadsheet the managing agent edits informally end up with a schedule that no longer matches the approved rules, which is the position that collapses under scrutiny.

Where these disputes end up

If the scheme and an owner cannot resolve it, the route is an application to the Community Schemes Ombud Service. Section 39 of the Community Schemes Ombud Service Act 9 of 2011 sets out the relief an adjudicator may order. Exclusive use disputes sit mainly in section 39(6), on private and common areas, which includes an order that the association carry out repairs or works and an order obliging an owner or occupier to accept obligations in respect of a defined part of a common area. CSOS's own training material lists parking bays and rule-based exclusive use areas among its worked examples of orders.

What decides those matters is documentary: the sectional or layout plan, the rules as approved by the Chief Ombud, the allocation schedule, the notarial deed if there is one, the resolution that authorised the arrangement, and the levy statements. A scheme that can produce that set in an afternoon is in a strong position. A scheme that cannot is settling.

A short audit any scheme can run this quarter

This is not optional housekeeping. The prescribed management rules require the body corporate to keep a record of the scheme's exclusive use areas, with their descriptions, purposes and numbers, indicating whether the right to each was conferred under section 27 of the Sectional Titles Act or in terms of a rule. A scheme that cannot produce that record is already short of its obligations.

1. List every area someone currently treats as exclusive, including the informal ones.
2. For each area, record the route that created it: a registered right under section 27, a rule-based right under the STSMA, or nothing at all.
3. Pull the supporting document for each one and file it against the unit, not in a general folder.
4. Compare the allocation schedule and the plan against the ground, and write down every mismatch.
5. Check the levy roll: is every holder charged the additional contribution, on a real estimate of rates, insurance and maintenance for that area?
6. Decide, for each mismatch and unsupported arrangement, whether to formalise it or end it, then put the resulting resolutions and rule amendments through the correct resolution type and, for rule changes, through the Chief Ombud.

Most schemes find a few arrangements with nothing behind them at step two, and finding those now is cheaper than finding them in an adjudication.

What this looks like in Votera

Most of the pain above is a record keeping problem wearing a legal costume. What is usually missing is one place where the right, the document, the holder and the money sit against the same unit.

In Votera, each unit carries its exclusive use areas as structured records, capturing the type of right, the area number, the permitted purpose and the holder, which is close to the record the prescribed management rules require anyway. Supporting documents attach to the record itself, so the notarial deed, the approved rules, the layout plan and the allocation schedule sit in one place rather than in a managing agent's archive. Because the additional contribution is a levy item, the charge for an area and the right to it are visible side by side, and a change of holder is a change to a record with a history.

Work raised on an exclusive use area is logged against the area and the unit, so who paid for the garage roof three years ago is answered from the history. No platform decides whether an arrangement was lawfully created, but trustees can see at a glance which exclusive use areas are properly papered and which are waiting to become a dispute.

Votera is an HOA and body corporate management platform built for South African community schemes, covering governance, maintenance, vendor compliance, and resident communication in one dashboard. See how the governance module works or start a free 30-day trial.