Q&A – 2021 04

By the Paddocks Club team

Below are examples of two questions on the Paddocks Club discussion forum, to show you what is available to our Community members!

Can a utility section be owned without owning a primary section?

Member’s question:

Good day Paddocks,

Is there a principle in law that a person must own a primary section before they can own a utility section?

An owner owns a primary section and two utility sections, a garage and a storeroom. What prevents him from selling his flat and garage but keeping the storeroom?

Regards

Graham’s answer:

Dear member,

This is not a common-law distinction or principle.

From 1973 to 1988 a draft sectional plan was first approved by the local authority. Before approval, the town-planning department very often imposed a condition prohibiting the ownership of identified sections— usually servants’ quarters, garages and storerooms—by anyone who was not also the owner of a residential section. These title deed restrictions, reflecting town planning norms, only applied to the schemes where they were imposed, not generally.

When the law was changed, doing away with local authority approval of draft sectional plans, local authorities should have incorporated this type of restraint into their town planning schemes.

The original draft of the regulations under the STSM Act included this type of restraint, using the defined distinctions between the two types of section. However, this provision was deleted before the regulations became law.

A developer could also impose this restraint as a title condition on opening the sectional title register.
The more important underlying issue—and the basis of the town planning concern—is the potential change of use of the utility section, and this is regulated under the STSM Act.

If the sale of a utility unit to a person who does not own a primary unit implies a change of use of the section for the purposes of section 13(1)(g) of the STSM Act, then the seller cannot change that use without the written consent of all owners.

If having additional families in some or all of the other utility units in the scheme would overcrowd or overload the scheme’s parking and other infrastructure, that could be considered an ongoing nuisance, implying that the person selling the utility section separately is creating the conditions necessary for a specific nuisance.

So a body corporate could refuse to issue a levy clearance certificate for such a transfer and make an application to CSOS for an order that the transfer cannot proceed unless the seller obtains the written consent of all owners to the use change from utility to primary section.

Regards,
Graham

What happens when a 7-day Annual General Meeting adjournment falls on a public holiday?

Member’s question:

Good day Paddocks,

If an SGM doesn’t reach a quorum and PMR 19(4), included below, is applied, what happens if the new date is a public holiday?

(4) If within 30 minutes from the time appointed for a general meeting a quorum is not present, the meeting stands adjourned to the same day in the next week at the same place and time; provided that if on the day to which the meeting is adjourned a quorum as described in sub-rule (2) is not present within 30 minutes from the time appointed for the meeting, the members entitled to vote and present in person or by proxy constitute a quorum.

Graham’s answer:

Dear member,

If the last day of any notice period is a Sunday or a public holiday, the notice period must exclude that day, finishing at the end of the next day. So in this case, the automatically adjourned meeting must be held on the day after the public holiday.

For more on calculating notice periods, read the Sectional Title Meetings Handbook, available on the Paddocks website, particularly Chapter 2.1.2 – Calculating notice periods.

Regards,
Graham


Article reference: Paddocks Press: Volume 16, Issue 4.

Graham Paddock is available to answer questions on the Paddocks Club discussion forum for Community members. Get all your questions answered by joining Paddocks Club.

This article is published under the Creative Commons Attribution license.

Back to Paddocks Press – April 2021 Edition.

Source: https://www.paddocks.co.za/paddocks-press-newsletter/qa-2021-04/

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