Property lawyers often use the phrase: ‘bind successors in title’. Simply put, this phrase connotes the idea that certain positive actions performed on one’s property will continue to affect the next owners use and enjoyment of the property. Therefore it is important to consider which positive actions one performs over their property as this could affect the property’s market value. It is furthermore, important how one goes about affecting said positive actions as this may have a direct impact on the ability transfer ownership . This article shall focus on the problems which may arise when performing positive actions to your property, specifically alterations to a sectional title property by way of illustration through a hypothetical scenario.
Alterations to townhouse / duet properties
In instances where residential erven are too small to subdivide, property owners that want to establish a second dwelling on their property often make use of the provisions of the Sectional Titles Act. This occurs by subdividing an existing building into two “living area” sections which effectively allows for the rest of the erf to be regarded as common property which is shared by the two owners. This arrangement is reflected on a sectional plan which gets drawn up by a land surveyor, approved by the Surveyor-General and then lodged at the deeds office for registration.
Problems often arise when one of the owners wants to make alterations to his or her portion of the property. The owner might want to add on a room, convert an open parking bay to a lock-up garage or make some other changes to the common property.
With conventional property the process is fairly straightforward – you submit your building plans to the local authority and once approved you start your alterations. With sectional title there is a further requirement that many owners are not aware of. Alterations to sectional title property usually involves changes to the common property and although an owner may have been exclusively using a certain area of the common property, he or she is not the sole owner thereof and any changes to the common property requires the other owner’s consent.
In addition banks that hold mortgage bonds over either of the two properties will have to give their consent to the changes as this might affect the underlying value of their security.
Lastly it is important to note that alterations of this nature usually affect the layout of the existing sectional plan and an amended sectional plan showing the changes would need to be registered at the deeds office.
Failure to strictly comply with prescribed processes of both your local municipality as well as the Deeds Office, could result in drawn out litigation if you sell your property after having done alterations without proper registration and your neighbour thereafter disputes your authority to have done the alterations.
Raymond Scott | Conveyancer | Real Estate
Fezile Nqiwa | Candidate Attorney.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)