SECTIONAL TITLE OWNERSHIP

Podcast

Sectional title ownership

- This form of ownership exists where you own an apartment, for example.
o This apartment is part of a broader sectional title scheme, which exists mostly because you
live in a shared arrangement with other owners.
- Sectional title law is a significant area of law in its own right, and smaller law firms may tend to
specialize in this area through, for instance, drawing up rules of conduct and establishing share
block schemes during the development of the property.

In this podcast, we only provide a broad overview of sectional title ownership, and mostly to
establish:

1. First, that it is entirely possible to conceive of an ownership right as relational to other

ownership rights and to other broader community interests, and
2. Second, that it is possible for statutory law – legislation – to recognise other forms of
ownership where the common law does not provide the right solution.

- Sectional title was first recognised in South Africa with the Sectional Titles Act 66 of 1971. This
law was updated to the current act, the Sectional Titles Act 65 of 1986, and was amended
subsequently with the passing of the Sectional Title Schemes Management Act 8 of 2011, and the
Community Schemes Ombud Service Act 9 of 2011.
- With the passing of the latter two acts, the governance of sectional title schemes was split into two
legislative areas:
o The 1986 Act governed the registration and establishment of a sectional title scheme in the
Deeds Registry, and
o The two 2011 Acts were established to deal with the management of sectional titles.
- The management of a sectional title scheme is crucial to its efficient functioning: owners pool
monetary resources to collectively manage the building or complex as a whole; if this is not
efficiently governed this could lead to the broader dilapidation of the scheme.

Imagine a couple of pointers in your mind:

 1. You decide to purchase an apartment in a residential building and, upon registration of
transfer of ownership, you become a co-owner of the building, specifically by owning one
part of the building – called your apartment.
2. What is often called the ‘Body Corporate’ – this is the group comprising all owners of the
scheme, and which is the building’s legal personality. The body corporate is managed by the
trustees elected by the members of the body corporate.
3. The sectional title scheme, which is effectively the agreement between all the co-owners in
the scheme to constitute the building as a sectional title scheme.

The nature of ownership in a sectional title scheme

1. First, a sectional title scheme is a particular form of bound co-ownership.

o The underlying legal arrangement sustaining the co-ownership is the particular sectional
title scheme registered over the whole property.
o This underlying agreement means that you, as a co-owner of the sectional title scheme,
cannot claim separation and division of the common property by means of the actio
communi dividundo for so long as the sectional title scheme remains in place.
 This is because we are dealing with bound co-ownership which, against, sustains the
co-ownership for its duration.
o You can alienate or encumber the section whilst the underlying legal relationship remains
in place, but you cannot do so freely – unlike with the free co-ownership.
 If you were to sell the section, for example, you would need clearance from the body
corporate to do so, and you will not be allowed to do so if, for example, you have not
paid up any levies owing in respect of your section of the property.

2. Second, it is clear by now that it is not legally correct to say you own the apartment like you
would a freeholding property. Rather, you own a portion, or section, of the building, which the
co-owners have collectively agreed to divide up into specific parts, detailed by vertical boundaries
(the height of the apartment) and horizonal boundaries (the length and breadth of the apartment).
o This makes a sectional title scheme different to a free co-ownership, where it is generally
not possible to physically divide the property up into portions.
o In the bound co-ownership of a sectional title scheme, co-owners can agree to do this, and
if they do – they divide the thing into sections, and each owner of an apartment is really an
owner of a section.
 This section size – in square meters – determines your participation quota in the
sectional title scheme, which in turn sets out not only the value of your vote in the
 governance of the sectional title scheme through the body corporate, but also the
extent of your contribution to the maintenance and administration of the building.
o These are called levies, and are also necessary in maintaining what is called the common
property – areas of the building such as a swimming pool, a garden, stairs, corridors, and
lifts which are open to all owners in the sectional title scheme.
 In addition to owning their own divided section of the scheme, all sectional owners
are bound co-owners of the common property, and the sectional owners have an
undivided share in the common property which is calculated with reference to the
participation quota.

3. Third, your use and enjoyment of your portion is limited to the extent that it does not limit the use
and enjoyment of other people’s portions.
o This is often the subject of much debate and argument in the business of a body corporate,
and which is why when you purchase a portion of a sectional title scheme, you will need to
agree to abide by the rules of the body corporate.
o So, in Body Corporate of Laguna Ridge v Dorsey, for example, the issue of owning pets
came up. Not everyone likes pets, and they may be a nuisance in certain built environments
such as an apartment complex where you could hear dogs barking right next to you, or
where cats may fight over territory. Accordingly, many sectional title rules forbid pets, and
your use and enjoyment of the portion of the scheme would be limited unlike in a free-
standing home.
o In Laguna Ridge, an owner had to obtain permission from the body corporate to keep her
dog. The body corporate denied the owner this permission, but she went ahead anyway and
kept the dog. The body corporate sought an order from court to remove the dog, and the
owner put in a counter-application to review the body corporate’s decision as essentially
arbitrary and that it was so unreasonable as to warrant the inference that they failed to apply
their minds to the facts of the matter. Their reason was that the scheme, as a block of flats,
was not suited to pets, and the general prohibition against pets would only be departed from
if exceptional reasons existed, such as the need for a guide dog for a visually-impaired
person. The respondent’s argument was that there was no way this dog could be a nuisance
to others: it did not bark; it was carried in a basket when it left the apartment; and the dog
was never on common property. The respondent won the case, principally because the size,
nature and the temperament of the dog meant it could not be considered a nuisance.
o Debatable if the case could be regarded as correctly decided: the case seemed to elevate the
respondent’s ownership of the portion of the scheme above the underlying legal agreement
binding the co-owners, namely the sectional title scheme and its rules.
 If you agree to buy into a sectional title scheme, you surely agree to limit your use
and enjoyment of the portion of the scheme to the extent provided by the rules.
 If you don’t like the rules, you are within your powers to try change them either at
the body corporate’s annual general meeting, or by being elected to a trustee of the
body corporate.
 But the court’s validation of the owner’s wishes seemed to overly disregard the fact
that the respondent was a co-owner of the broader scheme; not an individual owner
of the apartment itself as if it were a freestanding home.