Sectional title scheme – how do owners institute legal proceedings?

by | Mar 20, 2018 | Civil Litigation and Alternative Dispute Resolution, Commercial law, Conveyancing and Property law, Estate Planning, Publications | 0 comments

Ownership of a Section Title is made up of three elements; namely individual ownership, joint ownership and membership of a body corporate. Individual ownership is the section you purchased whereas joint ownership is the part know as common property.

The section purchased is considered the principle section, with undivided shares in the land and other common property which is undistinguishably linked thereto. Therefore, sectional owners own the common property jointly in undivided shares.

Sectional titles were regulated by the Sectional Titles Act 95 of 1986 (hereafter referred to as “the Act”), which has been replaced by the Sectional Title Schemes Management Act 8 of 2011 (hereafter referred to as STSMA).

Who has locus standi to institute legal proceedings when it relates to sectional title schemes?

The Western Cape Court was faced with the above question on whether the unit owners of a Sectional Title Unit had locus standi to institute legal proceedings in relation to the common property. The court in the matter below applied Section 41 of the Act although the Act has been repealed by STSMA. Section 9 of STSMA is similarly worded to Section 41 of the Act.

Mobile Telephone Networks (Pty) Ltd and Anther v Spilhaus Property Holdings (Pty) Ltd and Others

In terms of the above case it was held that when a deadlock exists between the historic and residential precinct such deadlock must be referred for resolution by a third party (a referee), who is obliged to take into account and be guided by the guidelines of the body corporate.

In the above-mentioned case an impasse had been reached. On 1 August 2014 the residential precinct owners applied to the High Court for an order in that; Applicants (Respondents in the court a quo) is to remove a cellular network base transceiver station together with associated infrastructure, cabling and support structure as well as that Applicants (Respondents in the court a quo) to co-operate to the extent necessary in the removal of the installation.

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