Typically, landowners create duets on land which cannot be subdivided for various reasons. So instead landowners establish a sectional title register with only two units. These may be two separate dwellings, or they may be semi-detached and are commonly known as duets or semi’s.
Often landowners prefer establishing these small sectional title schemes to subdivision due to the cost implications as it might be cheaper and faster to establish a sectional title scheme.
The problem is that many of our clients who live in these duet houses, are under impression that the Sectional Title Act. 95 of 1986 (“STA”) and the Sectional Titles Schemes Management Act, 8 of 2010 (“STSMA”) are not applicable to them. This however is not the case. Duet Houses, as any other Unit or Section, are strictly administered by the STA and STSMA. Owners often don’t realise that all the areas outside the dwelling form part of the common property. The affect thereof is that swimming pools, lapas, driveways, and garages/parking bays/car ports should be registered as Exclusive use areas.
Attorneys often encounter delays in property transfers as a result of owners not being aware of this and the effect it has on their ownership.
Typical problems that arise are:
- The Local Authority was never notified of the existence of the scheme or the Local Authority is only charging one owner of the rates and taxes.
- The rates and taxes payable in response of the scheme are in arrears which will affect both owners,
- Extension of building or exclusive use areas without plans,
- Rules affecting the owners,
- Signing of the 15B(3) Certificate by the conveyancer.
In terms of the STSMA:
- A Body Corporate is deemed to be established on the date of transfer of the first Unit into the name of the Purchaser thereof (Section 2(?) STSMA).
- The Developer must convey the first meeting within 60 days from the date of first transfer. (Section 2(8) of the STSMA).
- The homeowner who established the Sectional Title Scheme will be regarded the Developer of the Scheme and a fine and/or imprisonment may be imposed if the so-called Developer fails to convene the first meeting.
- By operation of law, both owners will be part of the Body Corporate and in terms of the STSMA both owners will be the trustees.
Local Authority Bills
- Bills issued in only one owner’s name when instead of the Body Corporate should be charged for the common property.
- Two rates accounts plus Body Corporate account but nobody received and paid the body corporate account – causing arrears in rates and taxes and consumption. Effectively it comes down to levies.
- Pre-paid water and electricity meters.
Extension buildings or exclusive use areas
- Owners are mostly unaware that extension of buildings or exclusive use areas needs to adhere strictly to the STA and will require the consent of their neighbour due to the fact that both owners are members of the B/C.
- If any extension occurs on the common property, for example, a swimming pool, lapa, or extra garage, all bondholders’ consents will be required – in other words, the mortgagee of the neighbour will also have to consent.
- Should the section be extended, and the extension will affect the Participation Quota with more than 10%, the bondholders’ consent of the neighbour will also be required for the said extension.
- Amended building plans will have to be lodged with the L/A – to be drawn by an architect.
- An amending Sectional Title Plan will have to be drawn by a surveyor and approved by the Surveyor-General.
- The owner will then have to bring a formal application for extension of the building or the Body Corporate for registration of an exclusive use area which application will be lodged, which is not ideal.
- The rules governing all the Body Corporate’s form part of Annexures 1 & 2 of the STSMA.
- If the standard rules are not custom fit for the specific scheme, the standard rules will apply, which is not ideal.
- All amended rules need to be filed and registered with the Ombud.
- Any amendments after registration of the scheme need to be approved by both owners where after the rules can only be filed and registered with the Ombud and will only be effective on issuing of a Certificate of Compliance from Ombud.
- The rules for these types of schemes need to be more specific for example:
- Maintenance of gardens, swimming pools, etc. – each party to pay its own costs.
- Walls, electric fences, driveway common to both properties, maintenance, etc.
- Noise levels
- Use of buildings
Both owners need to sign a Certificate in their capacity as members of the Body Corporate to certify that no moneys are outstanding and/or payable to the Body Corporate prior to the Conveyancer being able to sign the 15B(3) Certificate.
SSMA read with CSOS Act
The scheme needs to comply with both Acts, for example,
- Maintenance plan
- Reverse fund
Estate Agents need to familiarize themselves with the rules, levies, plans, comprehensive rates accounts, etc. when listing duets.
Banks are calling for approved plans, financials etc. more regularly now and this can present a huge delay when the plans and/or rules are not up to date.