COMMON PROPERTY  

Common Property in a sectional title scheme is the land included in the scheme, buildings that are not included in a section and land bought by the relevant body corporate subsequent to the establishment of the sectional title scheme.

Common Property is owned by all the unit holders in a sectional title scheme in their respective participation quota.

EXCLUSIVE USE AREAS

Exclusive Use Area is part or parts of Common Property for the use by the owner or owners of one or more sections.
It is not sufficient that access to the area is limited (e.g. balconies) to one or a few owners for the area to be an Exclusive Use Area.

Currently there are two methods to create an Exclusive Use Area. One is to register the Exclusive Use Area, the other is a rule-created Exclusive Use Area.

Registered Exclusive Use Areas
These Exclusive Use Areas are created in terms of S27 of the Sectional Titles Act, and a registered real rights over common property. This has to be authorized by a unanimous resolution of the body corporate and registered.

Upon registration the beneficiary of the Exclusive Use Area should receive a Certificate of Real Right.
These Exclusive Use Areas are considered as a real right and therefore may be mortgaged.

Rule-created Exclusive Use Areas
The body corporate may create an Exclusive Use Area in terms of Section 27A. This is a cheaper and less cumbersome method of creating an Exclusive Use Area as it involves amending the rules of the body corporate. As legislation does not specify the rules, which should be amended to include the Exclusive Use Area, it may be the management rules or the conduct rules. To amend the management rules a unanimous resolution is required, whilst amending the conduct rules requires a special resolution.

These amendments must be notified to the Registrar of Deeds for the rule to become enforceable. The rule must include a layout plan to scale, which indicates the Exclusive Use Areas and their purpose.

Note that this allows an Exclusive Use Area to be created by passing a special resolution (by amending the conduct rules). However due to the importance of exclusive use areas, and the potential for conflict between owners, the legislator should have stated clearly that rule-created exclusive use areas can only be established by way of management rules and therefore require a unanimous resolution.

Differences

Participation Quota

The Participation Quota (PQ) is based on the size of section in relation to the combined sizes of all the sections in a scheme. These are calculated to four decimal places and are registered with the sectional plan at the Registrar of Deeds.

PQ has nothing to do with ground area used, roof area used etc. It is based on the floor area of each section.

If a complex consists of residential and non-residential units the developer may nominate the PQ for the non-residential units. This nomination also has to be registered with the Registrar of Deeds. Thereafter the value of the PQ is calculated in relation to floor area for each section.

The owners of the section are joint owners of the common property based on their PQ.

Levies, special levies and the value of votes are calculated in accordance with the PQ for the relevant section.